Filed 3/8/19; Certified for Publication 3/27/19 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

LAURENCE JOHNSON,

 Plaintiff and Appellant,

v.

THE RAYTHEON COMPANY,

INC. et al.,

 Defendants and Respondents.

 B281411

 (Los Angeles County

Super. Ct. No. BC562444)

APPEAL from judgments of the Superior Court of Los 

Angeles County, Stuart M. Rice, Judge. Affirmed.

Robinson Calcagnie, Mark P. Robinson, Kevin Calcagnie, 

Genevieve Outlaw; Steinbrecher and Associates and Edward 

Steinbrecher for Plaintiff and Appellant. 

Horvitz & Levy, Mitchell C. Tilner, Stephen E. Norris; 

Burke, Williams & Sorensen, Mark J. Mulkerin, and Brian 

Hamblet for Defendant and Respondent The Raytheon Company 

Inc.
2

Yukevich Cavanaugh, James J. Yukevich, Raymond H. 

Hua and Michael D. Johnson for Defendant and Respondent 

Systems XT, Inc.

__________________________

Plaintiff and appellant Laurence Johnson was seriously 

injured when he fell from a ladder at work. At the time, Johnson 

was employed by an independent contractor which provided 

maintenance engineering staff for defendant and respondent The 

Raytheon Company, Inc. Raytheon was undergoing a renovation 

project of a water cooling tower on its premises. The prime

contractor for the water cooling tower project was defendant and 

respondent Systems XT, Inc.

In the course of Johnson’s maintenance engineering work, 

he investigated a low water level alarm by looking over the water 

cooling tower wall. To do so, he used an unsafe partial extension 

ladder which had been left at the wall by one of Systems XT’s 

subcontractors, and he fell when the ladder slipped. Johnson 

sued multiple defendants, alleging they were all responsible for 

the unsafe conditions which led to his fall. Two of the 

defendants, Raytheon and Systems XT, obtained summary 

judgment, and Johnson appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Parties

Before we discuss the facts in detail, it is useful to identify 

all of the entities involved and their contractual relationships.

Johnson was a maintenance engineer employed by ABM

Facilities Services, Inc., an independent contractor which 

provided control room staff to Raytheon. ABM is not a defendant 
3

in this case; Johnson received workers’ compensation benefits 

through ABM for the injuries he sustained in his fall. 

Separate and apart from Raytheon’s contractual 

relationship with ABM was Raytheon’s contractual relationship 

with Systems XT. Systems XT is a mechanical contractor which 

Raytheon hired to remove and replace its water cooling towers. 

It was the prime contractor on the job.1 

Two of Systems XT’s subcontractors are also defendants in 

this case, although they are not parties to this appeal. The first 

is Brownco Construction Company, Inc. which was the concrete 

subcontractor, and the entity which left the unsafe partial 

extension ladder at the cooling tower wall. The second is Power 

Edge Solutions, Inc. The water cooling tower required constant 

electronic monitoring of its water level. Power Edge Solutions 

was the subcontractor which installed electronic monitors as the 

water cooling tower renovation project progressed. This is 

relevant because Johnson alleges the alarm to which he was 

responding was a false alarm, which only occurred due to Power 

Edge Solutions’ alleged faulty wiring of the water level monitor. 

2. Johnson’s Accident2

Johnson worked the graveyard shift, monitoring various 

computers in the control room in Raytheon’s Building E5. At 

1 At deposition, the president of Systems XT explained that 

it was the “prime,” rather than the “general” contractor on the 

job. Systems XT distinguishes between the two on the basis that 

it did not have a general contractor’s license, and did all the work 

through subcontractors. 

2 We take our discussion of the facts largely from the 

undisputed facts and those facts on which Johnson relies. We 

discuss disputes in the facts where necessary.
4

around 2:50 a.m. on February 20, 2013, he started receiving low 

water level alarms pertaining to the water cooling towers. He 

was unable to resolve the alarms, so he telephoned his ABM 

supervisor, Robert Whitney. Whitney told him to do whatever he 

thought he should do. Johnson chose to go to the cooling tower 

wall directly, and look over the wall to verify the water level. 

Johnson saw a ladder leaning against the cooling tower 

wall. In the past, there had been a Raytheon-owned platform 

ladder at the wall.3 There was no platform ladder at the wall 

when Johnson approached. Instead, there was what appeared to 

be a straight ladder, which Brownco had left against the cooling 

tower wall. It turns out the ladder was not a straight ladder, but 

the upper half of an extension ladder. As it was intended for use 

only with the bottom half of the extension ladder, it did not have 

proper footing. In fact, the upper half of the extension ladder 

leaning against the wall had a caution label on it, stating, in all 

capital letters, “CAUTION” and “THIS LADDER SECTION IS 

NOT DESIGNED FOR SEPARATE USE.” Johnson did not see 

the caution label, nor did he move or adjust the ladder to make 

certain it was secure prior to using it. This was so even though

Johnson noticed that the ground was wet; it had rained earlier. 

Johnson ascended the ladder the few steps needed to look 

over the 8-foot wall. He looked over the wall and confirmed there 

was no problem with the water level. While he was climbing 

down the ladder, it slid out, causing him to fall on top of the 

ladder and sustain serious injuries. He was discovered some time 

later by a security guard who heard his screams in the distance. 

3 A platform ladder has four legs, and steps leading up to a 

platform with handrails. 
5

Whitney later had Power Edge Solutions investigate the 

water level monitor. Power Edge Solutions reported to him that 

the connections on the sensor had corroded.4 When Power Edge 

Solutions replaced the wires, the false alarms stopped. 

Whitney completed an incident report regarding Johnson’s 

accident. When asked why the unsafe conditions occurred, he 

responded, “Connections on the level sensor to sump level 

corroded, rain and tower runoff to wet concrete surface, lack of 

lighting and poor choice of ladder used.” 

3. Allegations of the Complaint

Johnson originally brought suit against Raytheon, which 

removed the case to federal court. The matter was subsequently 

remanded after Johnson added additional defendants whose 

presence defeated diversity jurisdiction. The operative complaint 

is the first amended complaint, which named as defendants 

Raytheon, Systems XT, Brownco, and Power Edge Solutions.

As against Raytheon, Johnson alleged causes of action for 

negligence and premises liability.5 Johnson alleged that 

Raytheon was negligent in the “retention of their control of the 

subject premises, including the water cooling tower, the worksite, 

4 Although not relevant to the issues on appeal, this fact is 

disputed. ABM’s log book states that Power Edge Solutions 

found corrosion. However, the Power Edge Solutions employee 

who actually troubleshot the sensor did not see any corrosion. He 

testified that the wires did not look bad to him, but he followed 

“good practice,” and cut the wires, cleaned them off, and 

reattached them. 

5 Johnson also alleged a cause of action for negligence per se, 

which is not pursued on appeal.
6

the procedures, and the unsafe equipment including the subject 

ladder, and Defendant Raytheon Company affirmatively 

contributed to causing [his] severe and catastrophic injuries.” 

Johnson’s complaint, however, did not specify any way in which 

Raytheon “affirmatively contributed” to his injuries.

As to Systems XT, Johnson alleged that it was the general 

contractor and therefore responsible for all of the work of its 

subcontractors, including Brownco and Power Edge Solutions. 

Johnson alleged Systems XT was negligent in two specific ways: 

(1) in allowing the sensor wires to be hooked up in a manner in 

which they were exposed to the elements, such that a false alarm 

was generated; and (2) in failing to supervise the construction 

site and require Brownco to put its ladders away at the end of 

each day.

6

Raytheon and Systems XT each moved for summary 

judgment. Although the briefing was virtually simultaneous, we 

discuss the proceedings on, and resolution of, each motion 

separately.

4. Raytheon’s Motion for Summary Judgment

In Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette), 

our Supreme Court held that when an employee of an 

independent contractor hired to do dangerous work suffers a 

6 Johnson alleged that Systems XT was also negligent for 

failing to install a “visual water level monitoring system,” which 

would enable the maintenance engineers to see the water level in 

the water cooling tower without looking over the wall. It 

immediately installed such a system after Johnson’s accident. 

Perhaps in recognition that such a visual monitor was not 

required in the water tower contract specifications, and that 

subsequent remedial measures are not admissible (Evid. Code,

§ 1151), Johnson does not pursue this theory on appeal.
7

work-related injury, the employee cannot recover against the 

individual who retained the independent contractor. (Id. at 

p. 692.) As Johnson was injured during the course of his 

employment with ABM, an independent contractor retained by 

Raytheon, Raytheon sought summary judgment on the basis of 

Privette and its progeny.

In opposition, Johnson argued that Privette was 

inapplicable, because his theory of liability against Raytheon was 

not one of vicarious liability, but direct liability for Raytheon’s 

own breach of duties owed to Johnson. Specifically, the Privette

doctrine allows for liability when the hirer of the independent 

contractor retained control over safety conditions at the worksite, 

and negligently exercised that retained control in a manner 

which affirmatively contributed to the employee’s injuries. 

(Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 

202 (Hooker).) Johnson took the position that Raytheon had 

retained control over which ladders ABM employees could use to 

look over the water cooling tower wall. Johnson argued that 

Raytheon had retained that control by generally leaving a 

platform ladder at the wall for ABM’s use. Johnson believed that 

Raytheon’s course of conduct of leaving a platform ladder at the 

wall constituted an implied agreement to always have one 

present, on which ABM’s engineers relied. Johnson then argued 

that Raytheon was negligent in failing to have a platform ladder 

at the wall on the night of the accident. However, Johnson 

conceded in his opposition that “[i]t is unknown why a platform 

ladder was not present at the time of the accident.” He simply 

argued that “Raytheon’s omission in not having a platform ladder 

present is the basis of its negligence.” 
8

Because Johnson’s theory of liability against Raytheon was 

based on Raytheon’s alleged failure to leave a platform ladder at 

the accident scene, evidence was submitted as to the presence 

and availability of other ladders at the Raytheon plant.7

Specifically, there was a great deal of evidence that there were 

other ladders available for Johnson’s use at Raytheon.8 Johnson

himself testified that he was aware of other ladders on 

Raytheon’s premises that night, including platforms. He did not 

know where the platform ladders were stored. However, A-frame 

ladders were stored in the boiler room and the chiller room in the 

E5 building, downstairs from the control room where Johnson 

had been working. In fact, in walking to the water cooling tower, 

Johnson could have walked through the chiller room where some 

A-frame ladders were stored. Another ABM engineer agreed that 

7 Raytheon also submitted evidence regarding the ladder 

training Johnson had received, to establish that Johnson was at 

fault for using the partial extension ladder without first 

inspecting it. It was undisputed that ABM had given Johnson 

ladder training via a PowerPoint presentation from Summit 

Training Source, Inc. The training included a slide on Ladder 

Selection, which stated, “Inspect feet for damage, and check that 

slip-resistant pads are secure.” It also says, “Finally, when 

choosing a ladder always inspect for damage.” Johnson 

completed his ladder training in August 2012, some six months 

prior to his accident, and received 100 percent on his test. 

8 Raytheon did not include in its separate statement 

anything regarding the availability of other ladders; this was 

likely because it was not until Johnson’s summary judgment 

opposition that he first raised the theory that Raytheon 

affirmatively contributed to the accident by not making a 

platform ladder available at the wall. 
9

ABM employees could simply go into the room and obtain Aframe ladders; ABM had the necessary keys. Raytheon’s 

manager of central plant operations testified that Raytheon also 

kept some platform ladders inside the E5 building and that 

Johnson had access to them. 

In reply in support of its motion for summary judgment, 

Raytheon argued that Johnson’s concession that it was unknown 

why there was no platform ladder at the wall at the time of the 

accident was dispositive. Hooker provides for hirer liability only 

when the retained control is negligently exercised in a manner 

that affirmatively contributes to the accident; Raytheon argued 

there could be no affirmative contribution when there is no 

evidence that Raytheon itself removed the platform ladder. 

The trial court granted the motion, concluding that the 

Privette doctrine barred Johnson’s suit against Raytheon. The 

court specifically held that Johnson failed to raise a triable issue 

of fact that any retained control (in terms of providing a platform 

ladder at the wall) affirmatively contributed to his injuries. The 

mere facts that (1) Johnson had used Raytheon’s platform ladders 

before, and (2) there was not one present at the cooling tower 

wall on the night of the accident are insufficient to establish 

affirmative contribution. 

5. Systems XT’s Motion for Summary Judgment

Like Raytheon, Systems XT moved for summary judgment 

on the basis of Privette. However, it was something of a challenge 

for Systems XT to put itself in the legal position of a hirer of an 

independent contractor whose employee was injured. To be sure, 

Johnson sought to hold Systems XT vicariously liable for the 

negligence of its subcontractors, Brownco and Power Edge 

Solutions. But Johnson was not an employee of those 
10

subcontractors, or any other subcontractor who ultimately 

reported to Systems XT. Although Johnson was employed by 

ABM, a contractor on the Raytheon campus, ABM was not part of 

the water cooling tower renovation project and did not answer to 

Systems XT. Systems XT argued that it was Raytheon’s agent, 

and therefore entitled to Raytheon’s Privette immunity when it 

stood in Raytheon’s shoes, but we believe the more correct 

argument was Systems XT’s alternative one: that even assuming 

Privette does not apply, Systems XT simply owed no duty to 

Johnson, who was a stranger to it.

As we have noted, in Johnson’s complaint, he identified two 

purported duties he believed were owed to him and breached by 

Systems XT: (1) a duty to ensure the sensor was properly hooked 

up by Power Edge Solutions and not generating false alarms; and 

(2) a duty to ensure Brownco put its ladders away at the end of 

each day. In his opposition to Systems XT’s motion for summary 

judgment, he again identified each of these duties, and alleged 

that they were owed him based on general principles of 

foreseeability, as well as the terms of Systems XT’s contract with 

Raytheon. In addition, Johnson added to his opposition a new 

duty not previously alleged: (3) a duty to provide temporary 

lighting at the worksite. 

On the issue of lighting, there was evidence that Johnson 

had a flashlight with him. There was some evidence that 

Raytheon had told Systems XT to install temporary lighting, 

which had been placed on the roof of the E5 building and shone 

downward into the water cooling tower construction area while 

work was being done outside of daylight hours. There was also 

evidence that the lights were still on the roof at the time of the 

accident, but had been disconnected. 
11

The trial court granted Systems XT’s motion for summary 

judgment.

6. Judgment and Appeal

Judgments were entered in favor of Raytheon and Systems 

XT. Johnson filed timely notices of appeal. 

DISCUSSION

1. Standard of Review

A defendant moving for summary judgment must show 

“that one or more elements of the cause of action . . . cannot be 

established, or that there is a complete defense to the cause of 

action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Summary 

judgment is appropriate where “all the papers submitted show 

that there is no triable issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law.” (Id., 

subd. (c).)

Our Supreme Court has made clear that the purpose of the 

1992 and 1993 amendments to the summary judgment statute 

was “ ‘to liberalize the granting of [summary judgment] 

motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 

536, 542; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 

848.) It is no longer called a “disfavored” remedy. (Perry, at 

p. 542.) “Summary judgment is now seen as ‘a particularly 

suitable means to test the sufficiency’ of the plaintiff’s or 

defendant’s case.” (Ibid.) On appeal, “we take the facts from the 

record that was before the trial court. . . . ‘ “We review the trial 

court’s decision de novo,[

9] considering all the evidence set forth 

9 In his opening brief, Johnson states that he is only 

addressing the theories on which trial court based its summary 

judgment ruling, not all of the theories on which Raytheon and 

Systems XT sought summary judgment. As our review is de 
12

in the moving and opposing papers except that to which 

objections were made and sustained.” ’ ” (Yanowitz v. L’Oreal 

USA, Inc. (2005) 36 Cal.4th 1028, 1037, citation omitted.)

2. Raytheon Was Appropriately Granted Summary 

Judgment

a. Brief overview of Privette and its progeny

To understand Privette, one must begin with the general 

principle that, historically, a hirer of an independent contractor 

was not liable for the negligence of the independent contractor. 

(Privette, supra, 5 Cal.4th at p. 693.) Many exceptions were 

adopted to that rule, including the “peculiar risk” doctrine, which 

ensured “that innocent third parties injured by the negligence of 

an independent contractor hired by a landowner to do inherently 

dangerous work on the land would not have to depend on the 

contractor’s solvency in order to receive compensation for the 

injuries.” (Id. at p. 694.) In Privette, our Supreme Court 

considered whether to extend the peculiar risk doctrine to the 

situation where the injured party was an employee of the 

independent contractor. The court answered the question in the 

negative, largely, although not exclusively, on the basis that the 

injured employee would already receive benefits from the 

workers’ compensation system. (Id. at pp. 692, 699.) The court 

concluded that the policy reasons for allowing a third party to 

recover against the hirer of a negligent independent contractor 

under the doctrine of peculiar risk were simply not present when 

the injured plaintiff was an employee covered by workers’

compensation. (Id. at p. 701.)

 

novo, we may affirm for reasons different from the trial court’s 

reasons. (Bunnell v. Department of Corrections (1998) 64 

Cal.App.4th 1360, 1367.)
13

After Privette came a series of cases extending it. Privette

renders the hirer of an independent contractor immune from 

liability to the independent contractor’s employee even when the 

basis for liability was that the hirer failed to provide in the 

contract that the contractor must take special precautions to 

avert the risks of the work. (Toland v. Sunland Housing Group, 

Inc. (1998) 18 Cal.4th 253, 256-257.) Privette also bars liability 

when the injured employee’s theory is that the hirer negligently 

hired the independent contractor. (Camargo v. Tjaarda Dairy

(2001) 25 Cal.4th 1235, 1238.) Finally, Privette applies when the 

injured employee’s cause of action against the hirer of the 

independent contractor is based on the hirer’s failure to comply 

with statutory or regulatory workplace safety requirements. 

(SeaBright Insurance Co. v. US Airways, Inc. (2011) 52 Cal.4th 

590, 594.)

There are, however, two circumstances in which Privette

does not apply, and an injured employee of an independent 

contractor may recover in tort from the party which hired that 

independent contractor. The first, which we have already alluded 

to, was set forth in Hooker, and was based on the concept of 

negligent exercise of retained control. “[A] hirer of an 

independent contractor is not liable to an employee of the 

contractor merely because the hirer retained control over safety 

conditions at a worksite, but . . . a hirer is liable to an employee of 

a contractor insofar as a hirer’s exercise of retained control 

affirmatively contributed to the employee’s injuries.” (Hooker, 

supra, 27 Cal.4th at p. 202.)

The second Privette exception was discussed in Kinsman v. 

Unocal Corp. (2005) 37 Cal.4th 659 (Kinsman), and sets forth the 

limited circumstances in which the hirer of an independent 
14

contractor can be liable to an employee of that contractor for 

hazardous conditions of its property. “[A] landowner that hires 

an independent contractor may be liable to the contractor’s 

employee if the following conditions are present: the landowner 

knew, or should have known, of a latent or concealed preexisting 

hazardous condition on its property, the contractor did not know 

and could not have reasonably discovered this hazardous 

condition, and the landowner failed to warn the contractor about 

this condition.” (Kinsman, at p. 664, fn. omitted.)

In this case, Raytheon obtained summary judgment on the 

basis of Privette. We agree that the undisputed facts establish 

the initial applicability of Privette and its progeny: Raytheon 

hired ABM as an independent contractor; Johnson is an ABM 

employee seeking to pursue Raytheon for injuries he suffered in 

the course of his employment and for which he obtained workers’

compensation. That Johnson was injured allegedly due to the 

negligence of another independent contractor also retained by 

Raytheon does not prevent Privette’s application to Raytheon. 

(Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77, 94.) The issues 

raised by this appeal concern whether Johnson has established a 

triable issue of material fact exists as to one of the two 

exceptions, either retained control under Hooker or premises 

liability under Kinsman.

b. No triable issue of fact under Hooker

There are three elements to the Hooker exception: (1) the 

hirer retains control over any part of the work; (2) the hirer 

negligently exercises that control; and (3) the hirer does so in a 

manner that affirmatively contributes to the employee’s injury. 

(Khosh v. Staples Construction Co., Inc. (2016) 4 Cal.App.5th 712, 

717.)
15

There is no evidence that Raytheon placed the Brownco 

partial extension ladder at the cooling tower wall, and Johnson 

did not oppose summary judgment on the basis that Raytheon 

affirmatively contributed to his fall by replacing the platform 

ladder with the Brownco partial extension ladder. Instead, he 

argued that Raytheon affirmatively contributed to his injury by 

omitting to have its usual platform ladder present at the wall. 

“[A]ffirmative contribution need not always be in the form of 

actively directing a contractor or contractor’s employee. There 

will be times when a hirer will be liable for its omissions. For 

example, if the hirer promises to undertake a particular safety 

measure, then the hirer’s negligent failure to do so should result 

in liability if such negligence leads to an employee injury.” 

(Hooker, supra, 27 Cal.4th at p. 212, fn. 3.) 

We assume, without deciding, that Johnson has raised a 

triable issue of fact that the usual presence of a platform ladder 

at the cooling tower wall constituted an affirmative promise to 

provide one. Nonetheless, Johnson has failed to raise a triable 

issue of fact that Raytheon’s failure to ensure the presence of a 

platform ladder on the night of the accident affirmatively 

contributed to his fall. This is so because of the undisputed 

evidence that Raytheon provided ABM employees with access to 

numerous other safe ladders. Johnson himself testified that 

ladders were in the chiller room of the very same building in 

which he worked, and that he could have gone to the water 

cooling tower via a route which took him right through the room 

where the ladders were stored.

In this respect, this case is to be distinguished from Browne 

v. Turner Construction Co. (2005) 127 Cal.App.4th 1334. In 

Browne, the plaintiff was a subcontractor’s employee who fell 
16

from a ladder while working at a high height. He brought suit 

against both the general contractor and the owner, claiming they 

were liable under Hooker for removing safety devices they had 

previously provided. Specifically, the defendants had provided a 

system of safety lines to which employees working at heights 

were able to anchor themselves. The defendants had also 

provided scissor lifts, which enabled the employees to perform 

elevated work without ladders. The defendants removed the 

safety lines some months prior to the accident, and abruptly 

removed the scissor lifts immediately before the plaintiff’s 

accident. (Browne, at pp. 1337-1339.) The trial court granted the 

defendants summary judgment on Hooker, but the Court of 

Appeal reversed. The court held that the defendants’ removal of 

these two safety devices left the plaintiff “with no safe means of 

completing the work. There was no evidence that this was done 

in the expectation that plaintiff’s employer could, would, or 

should make substitute arrangements.” (Browne, at p. 1345.) 

The court noted that the removal of the safety lines had occurred 

two months prior, and this itself might not have constituted 

negligence so long as the scissor lifts were present. “There is 

evidence, however, that defendants abruptly removed the lifts the 

day before the injuries, that they wanted the work finished 

without delay, and that they might not have permitted a lift to be 

brought back into the [room where the plaintiff was working] 

even if one had been obtained.” (Ibid.)

In short, in Browne, summary judgment was reversed 

because there was evidence the defendant abruptly removed the 

only remaining safe way for the plaintiff to do his job, demanding 

the work be finished without delay and possibly even preventing 

the plaintiff from bringing the safety equipment back. In 
17

contrast, in this case, Johnson can only establish that someone 

removed the platform ladder from the wall, but there were 

numerous other A-frame ladders freely available nearby. While 

Johnson suggests the alarm could have reflected a critical cooling 

tower failure which could result in substantial financial loss to 

Raytheon, there is no evidence that Raytheon demanded Johnson 

investigate the alarm with such expediency that he could not stop 

in the chiller room and obtain an A-frame ladder to do the job 

safely. (Cf. Ray v. Silverado Constructors (2002) 98 Cal.App.4th 

1120, 1132-1133 [reversing summary judgment because the 

governing contract prohibited the plaintiff’s employer from taking 

the necessary safety precaution without the advanced written 

permission of the defendants].)

In his opening brief on appeal, Johnson argues that the 

removal of the platform ladder created “a situation where 

[Johnson] was left with no safe means of performing his work.” 

After Raytheon pointed out the availability of other ladders in its 

respondent’s brief, Johnson argued, in reply, that he had believed 

the ladder he found at the wall had been left by Raytheon, so had 

assumed it was safe, and that the area was not sufficiently well 

lit for him to have appreciated the danger posed by the partial 

extension ladder. While these arguments go some way to 

explaining why Johnson chose to use the partial extension ladder 

he discovered at the wall, they do not raise a triable issue of fact 

as to Raytheon’s alleged affirmative contribution to his injury. 

Raytheon did not represent that the partial extension ladder was 

a safe replacement for the platform ladder, nor did Raytheon

promise to provide ABM’s employees with light fixtures at the 

water cooling tower – and Johnson cannot suggest for the first 

time in its reply brief on appeal that it did.
18

c. No triable issue of fact under Kinsman

In the alternative to his argument that Raytheon is liable 

under the Hooker exception to Privette, Johnson argues that 

Raytheon is liable in premises liability. But Johnson largely 

overlooks the fact that, when Privette would otherwise apply, the 

Kinsman test determines when the hirer is, and is not, liable for 

premises liability to the employee of its independent contractor. 

(Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 

1278.)

Under Kinsman, the hiring defendant is liable only if: (1) it 

knew, or should have known, of a latent or concealed preexisting 

hazardous condition on its property; (2) the independent 

contractor did not know and could not reasonably have discovered 

the hazardous condition; and (3) the landowner failed to warn the 

contractor about the condition. (Kinsman, supra, 37 Cal.4th at 

p. 675.) Even the most cursory review of the facts in this case 

establishes that Johnson cannot satisfy this test. Assuming, 

without deciding, that the presence of Brownco’s partial 

extension ladder against the cooling tower wall constituted a 

hazardous condition of Raytheon’s property, Johnson has failed to 

raise a triable issue of material fact of the first element: that 

Raytheon knew or should have known that it was there. At most, 

Johnson relies on evidence that Raytheon’s manager of central 

plant operations had seen Brownco employees using this partial 

extension ladder at the water cooling tower wall one week prior 

to the accident. But this is not evidence that Raytheon was 

aware that the partial extension ladder had been left at the wall 

at the time of the accident. Moreover, Johnson cannot establish 

that ABM could not reasonably have discovered the hazardous 

condition. The partial extension ladder was clearly marked with 
19

the “caution” sticker, identifying it as a partial extension ladder 

not to be used without the other part.

10 Although it was dark, 

defendant had a flashlight. If he had inspected the ladder, he 

would have discovered the danger it presented.

The Kinsman opinion noted, however, that there may be 

situations “in which an obvious hazard, for which no warning is 

necessary, nonetheless gives rise to a duty on a landowner’s part 

to remedy the hazard because knowledge of the hazard is 

inadequate to prevent injury.” (Kinsman, supra, 37 Cal.4th at 

p. 673.) This is so when, for example, the practical necessity of 

encountering the danger, when weighed against the apparent 

risk involved, is such that, under the circumstances, a person 

might choose to encounter the danger. (Ibid.) This gloss on the 

rule also does not assist Johnson. As we have discussed above in 

connection with the Hooker exception, it is undisputed that there 

were A-frame ladders available to Johnson. Thus, if the Brownco 

partial extension ladder were to be considered an obvious hazard, 

it cannot give rise to Raytheon’s liability because knowledge of 

the hazard is not inadequate to prevent injury. Anyone with 

actual knowledge of the hazard could have avoided it by 

obtaining an A-frame ladder instead.

In this regard, Johnson argues that his own failure to use 

due care would be relevant only to comparative negligence, and 

10 In his reply brief, Johnson argues that there was nothing 

on the “caution” label “to notify [Johnson] that the ladder posed a 

safety hazard such that it would cause him to fall or inflict 

serious bodily injury if used.” On the contrary, the 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.
20

would not absolve Raytheon from liability, citing Castro v. City of 

Thousand Oaks (2015) 239 Cal.App.4th 1451, 1458-1459. But 

Castro was a case involving the dangerous condition of public 

property, not a Privette/Kinsman case. Here, the initial 

formulation of the Kinsman test asks whether the independent 

contractor could reasonably have discovered the latent hazardous 

condition; the gloss on the test for obvious hazards asks whether 

knowledge of the hazard is inadequate to prevent injury. Both of 

these tests are 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). (Gonzalez v. Mathis (2018) 

20 Cal.App.5th 257, 273-274 review granted May 16, 2018, 

S247677 [in premises liability, the reasonableness of a party’s 

actions is a question of fact unless reasonable minds can come to 

only one conclusion].)

3. Systems XT Was Appropriately Granted Summary 

Judgment

In Johnson’s appeal of the summary judgment in favor of 

Systems XT, he argues both that Systems XT is not entitled to 

the benefit of Privette and that Systems XT is otherwise liable to 

him in negligence, for breach of a duty of care. We need not reach 

the first issue, because we conclude Johnson is wrong on the 

second. Systems XT owed him no duty.

“ ‘Actionable negligence is traditionally regarded as 

involving the following: (1) a legal duty to use due care; 

(2) a breach of that duty; and (3) the breach as the proximate or 

legal cause of the resulting injury.’ [Citation.] ‘ “ ‘The threshold 

element of a cause of action for negligence is the existence of a 

duty to use due care toward an interest of another that enjoys 
21

legal protection against unintentional invasion. [Citations.] 

Whether this essential prerequisite to a negligence cause of 

action has been satisfied in a particular case is a question of law 

to be resolved by the court.’ ” ’ ” (Suarez v. Pacific Northstar 

Mechanical, Inc. (2009) 180 Cal.App.4th 430, 437 (Suarez).)

Johnson argues that there were three duties owed: (1) a 

duty to ensure Power Edge Solutions properly installed the 

sensor and it was not generating false alarms; (2) a duty to 

ensure Brownco put its ladders away at the end of each day; and 

(3) a duty to provide temporary lighting at the worksite. Johnson 

argues each of these duties is owed under general tort principles 

(see Rowland v. Christian (1968) 69 Cal.2d 108, 112-113

(Rowland)) and due to the contract between Systems XT and 

Raytheon.

Momentarily setting to one side the duty to provide 

temporary lighting (which Johnson did not allege in the operative 

complaint), the duties on which Johnson relies are, in effect, an 

attempt to hold Systems XT vicariously liable for the acts and 

omissions of its independent contractors. But Johnson makes no 

argument that Systems XT should be liable for the acts of its 

subcontractors under the peculiar risk doctrine or any other 

exception to the general rule of nonliability for the negligence of 

one’s independent contractors. Instead, he simply argues that a 

duty is owed because it was foreseeable that, as an employee of 

another contractor on the same jobsite, he might be injured by 

responding to a false alarm and/or using a partial extension 

ladder left on the premises. Additionally, he finds a duty for 

Systems XT to take responsibility for its subcontractors in the 

contract between Systems XT and Raytheon.
22

Johnson’s foreseeability argument has its roots in Rowland. 

Johnson suggests that the Rowland factors, of which there are 

seven (see Rowland, supra, 69 Cal.2d at p. 113) favor the 

existence of a duty imposed on Systems XT in this case, but he 

addresses only the first factor, foreseeability. We assume 

Johnson concedes that the remaining factors (the degree of 

certainty that the plaintiff suffered injury, the closeness of the 

connection between the defendant’s conduct and the injury 

suffered, the moral blame attached to the defendant’s conduct, 

the policy of preventing future harm, the burden to the defendant 

and consequences to the community of imposing a duty, and the 

availability of insurance) weigh against a finding of duty. (See 

Suarez, supra, 180 Cal.App.4th at p. 438 [at common law, the law 

did not recognize a “special relationship between an employer, 

such as [the defendant] and the employees of another employer 

who are present at the same worksite”].)

Johnson next would find a duty in the contract between 

Raytheon and Systems XT. To be sure, the common law did 

recognize “that a special relationship of the type that gives rise to 

a duty to take affirmative action to protect another may be 

created by contract . . . .” (Suarez, supra, 180 Cal.App.4th at 

p. 438.) We therefore consider whether the Raytheon/Systems 

XT contract imposed on Systems XT a duty to Johnson with 

respect to Systems XT’s control over its subcontractors.

The first duty Johnson would impose is a duty to ensure 

Power Edge Solutions installed the monitor correctly such that it 

generated no false alarms. For this, Johnson relies on an 

August 9, 2011 “Statement of Work” for the water cooling tower 

project, which provides that the water cooling plant “must be a 

24 x 7 ‘Fail-Safe’ operation” because it “supports the Critical 
23

Labs, Clean Rooms and Computer Centers” throughout

Raytheon’s campus. We have no doubt that Raytheon hired 

Systems XT to install a “24 x 7 ‘Fail-Safe’ operation,” as this was 

necessary for Raytheon’s purpose, as the document itself 

explains. But Johnson has identified no contractual term which 

provided that Systems XT’s contractual duty to deliver to 

Raytheon a fail-safe operation created a duty to maintenance 

engineers who may be working on Raytheon’s premises to provide 

a system which never generated a false alarm in need of 

investigation. For example, there is no suggestion that Raytheon

had previously promised ABM there would be no false alarms 

and that it contracted with Systems XT to assume its contractual 

duty. Johnson is simply not a third party beneficiary of this 

contract (Civ. Code, § 1559) and the agreement therefore does not 

give rise to a duty owed to him.

The second duty Johnson would impose is a duty on 

Systems XT to ensure that Brownco put its ladders away at the 

end of each day. Here, Johnson relies on multiple provisions of 

Raytheon’s “Contractor Safety Handbook [for] Outside 

Contractors.” These include that general contractors “assume[]

responsibility to ensure that subcontractors adhere to . . . the 

requirements described in this handbook. The general contractor 

will be held responsible for any violations committed by any of 

their sub-contractors.” The specific provision on “Housekeeping” 

provides that “Contractors are responsible for keeping their work 

areas orderly and neat. If their work areas pose tripping or 

slipping hazards to Raytheon employees, proper warning signs 

must be posted. At the close of each workday, contractors must 

clean and free the work area of all trash, debris, tools, equipment, 

dust, extension cords, and/or similar hazards.” The provision 
24

governing ladders provides, “When not in use, store the ladder in 

an appropriate storage space.” Johnson also relies on Raytheon’s 

general construction terms and conditions, which were 

incorporated by reference into the Raytheon/Systems XT 

contract. These provisions include: “All tools, equipment, 

supplies and other items required for the construction project 

must be secured by the contractor/subcontractor.” (Capitalization 

omitted.) The general terms also include a provision on “Safety 

Requirements,” which states, “Contractor shall be responsible for 

initiating, maintaining and supervising all safety precautions 

and programs in connection with the work, including work by any 

subcontractors. Contractor shall take all reasonable precautions 

for the safety and health of, and shall provide all reasonable 

protection to prevent damage, injury or loss to: [¶] (1) all 

employees on the project, whether their own or belonging to a 

subcontractor, and all other persons who may be affected or 

injured as a result of the work contemplated under this 

contract . . . .” Johnson argues that as he is an “other person[]” 

who was injured as a result of Systems XT’s subcontractor’s 

failure to comply with the requirement to put its ladders away at 

the end of the day, Systems XT assumed a duty to Johnson by 

this language.

The law is not so broad. In West v. Guy F. Atkinson Constr. 

Co. (1967) 251 Cal.App.2d 296, a pre-Privette case, a 

subcontractor’s employee was injured at a job site and brought 

suit against the general contractor on the job. As in our case, 

liability turned on whether the general contractor had assumed a 

duty of care toward the plaintiff. (Id. at pp. 297, 299.) The 

plaintiff relied on the contract between the general contractor 

and the hirer, by which the contractor agreed that he would 
25

“ ‘provide all safeguards, safety devices and protective equipment 

and take any other needed actions, on his own responsibility . . . 

reasonably necessary to protect the life and health of employees 

on the job and the safety of the public . . . .’ ” (Id. at p. 302.) 

Standard provisions incorporated into the contract also provided 

that the contractor would keep the work under his control, and 

all subcontractors would be recognized as employees of the 

contractor. (Ibid.) When the injured subcontractor’s employee 

sought to impose liability on the contractor based on these 

provisions, the Court of Appeal disagreed. The court read the 

contract as simply emphasizing the fact that by subcontracting, 

the contractor was not relieved of any obligation otherwise 

already owed. The hirer “did not intend by said provisions to 

enlarge [the contractor’s] liability or create a third-partybeneficiary contract [citation] to the end that the subcontractor’s 

employees would enjoy the right to a common law action at law in 

addition to their right to workmen’s compensation benefits.” 

(Ibid.) Likewise, the provisions on which Johnson relies simply 

provide that Systems XT is not absolved of its existing 

responsibilities by the use of subcontractors. There is no 

evidence that Raytheon intended to create a third party 

beneficiary contract by which individuals, like Johnson, to whom 

Systems XT did not otherwise owe a duty, would be entitled to 

recover in tort.

Finally, we return to the one duty which Johnson suggests 

Systems XT breached with its own conduct, not simply 

vicariously: Johnson argues that Systems XT owed him a duty to 

keep the area lit. Nowhere in the operative complaint did 

Johnson allege that Systems XT owed him any such duty. A

plaintiff may not oppose summary judgment by raising a theory 
26

not pleaded. Here, that is exactly what Johnson sought to do. 

Systems XT pointed out in its reply in the trial court that it was 

too late for Johnson to submit this new theory. 

“To create a triable issue of material fact, the opposition 

evidence must be directed to issues raised by the pleadings. 

[Citation.] If the opposing party’s evidence would show some 

factual assertion, legal theory, defense or claim not yet pleaded, 

that party should seek leave to amend the pleadings before the 

hearing on the summary judgment motion.” (Distefano v. 

Forester (2001) 85 Cal.App.4th 1249, 1264-1265; see Howard v. 

Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 421 

[“A moving party seeking summary judgment or adjudication is 

not required to go beyond the allegations of the pleading, with 

respect to new theories that could have been pled, but for which 

no motion to amend or supplement the pleading was brought, 

prior to the hearing on the dispositive motion.”]; see also Edmon 

& Karnow, Cal. Practice Guide: Civil Procedure Before Trial 

(The Rutter Group 2018) § 10:51.1, p. 10-22; § 10:257, p. 10-118.) 

Here, Johnson never sought to amend the operative 

complaint with his new factual assertion that Systems XT owed 

him any duty to provide lighting. No evidence supports any such 

duty, in any event. Johnson relies on a provision of the contract 

between Raytheon and Systems XT which pertains to the work as 

finished, not any temporary lighting to be provided while work is 

in progress. Moreover, as discussed above, there is no indication 

that Systems XT’s contract with Raytheon was intended to 

benefit Johnson. Johnson’s Hooker-type argument, suggesting 

that Systems XT voluntarily undertook the duty to provide 

temporary lighting as a safety measure, but abruptly removed 

that lighting just prior to his fall, also has no evidentiary support. 
27

Systems XT did not leave Johnson in the dark with no way to 

perform his task. Johnson had a flashlight; he simply chose not 

to use it when he inspected the water level. 

DISPOSITION

The judgments in favor of Raytheon and Systems XT are 

affirmed. Raytheon and Systems XT shall recover their costs on 

appeal.

GRIMES, Acting P. J.

WE CONCUR:

STRATTON, J. 

WILEY, J.
Filed 3/27/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

LAURENCE JOHNSON,

 Plaintiff and Appellant,

v.

RAYTHEON COMPANY et al.,

 Defendants and Respondents.

 B281411

 (Los Angeles County

Super. Ct. No. BC562444)

ORDER CERTIFYING 

OPINION FOR 

PUBLICATION

[No change in judgment]

THE COURT:

The opinion in the above-entitled matter filed on March 8, 

2019, 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 and it is so ordered.

There is no change in the judgment. 

____________________________________________________________

GRIMES, Acting P. J. STRATTON, J. WILEY, J.