Acosta v. Mas Realty, LLC

96 Cal.App.5th 635

314 Cal.Rptr.3d 507

Louis ACOSTA, Plaintiff and Respondent,

v.MAS REALTY, LLC, et al., Defendants and Appellants;

Horizon Lighting, Inc., Cross-defendant and Respondent.

B316420

Court of Appeal, Second District, Division 3, California.

Filed September 20, 2023

As Modified October 19, 2023

Law Offices of Cleidin Z. Atanous, Cleidin Z. Atanous, Brea; The Safarian Firm, Harry A. Safarian, Glendale, and Christina S. Karayan for Defendants and Appellants.

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

Horvitz & Levy, H. Thomas Watson, Jason R. Litt, Burbank; Bremer Whyte Brown & O'Meara and Daniel A. Crespo, Woodland Hills, for Cross-defendant and Respondent.

EDMON, P. J.

Plaintiff Louis Acosta, an electrical technician, was injured when a broken hatch providing access to the roof of a commercial building slammed shut on his back, herniating several of his discs. He sued the building's owner and management company for negligence and premises liability, contending that defendants had failed either to repair a dangerous condition of which they were aware or to warn him of it. A jury returned a special verdict for Acosta and awarded him damages in excess of $12.6 million.

We reverse. As we discuss, under Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 ( Privette ) and its progeny, a property owner who hires an independent contractor may be liable to the contractor's employee for injuries sustained on the job only if the owner exercises retained control over any part of the contractor's work in a manner that affirmatively contributes to the worker's injuries, or the employee is injured by a concealed hazard that is unknown and not reasonably ascertainable by the contractor. In the present case, Acosta does not contend that defendants exercised any retained control over the work site, and the undisputed evidence established that Acosta and his employer could reasonably have ascertained the hazardous condition of the site—i.e., that the mechanism designed to hold the roof hatch open was broken and the ladder that provided access to the hatch did not reach all the way to the roof. Accordingly, we will direct entry of judgment for defendants.

FACTUAL AND PROCEDURAL BACKGROUND

I. Background.

Defendant MAS Realty, LLC (MAS) owns a shopping center called Arlington Plaza. Arlington Plaza is made up of one large building and three smaller buildings, each of which is identified by a letter. The building at issue in this case is referred to as "Building A," "Sector A," or "Pad A."

In 2014, MAS hired defendant Athena Property Management, Inc. (Athena) to manage Arlington Plaza. The same year, Athena hired a roofing company, The Roof Depot, Inc. (Roof Depot), to inspect Arlington Plaza's roofs and make any necessary repairs. In September 2014, Roof Depot advised Athena of two issues with the Building A roof access. First, the roof access cover (also referred to as a "hatch" or "roof hatch") " ‘does not close properly. Spring is broken making it heavy and dangerous to open and close.’ " Second, the " ‘[r]oof ladder is too short. Roof ladder stops two feet from the top of the roof hatch. Does not meet OSHA specifications.’ " Roof Depot advised that the cost to repair these issues was $3,353. It is undisputed that these repairs were not made.

II. The August 10, 2016 incident.

Acosta is an electrical technician. In 2015, he began working for Horizon Lighting, Inc. (Horizon), which had contracted with Athena to maintain the lights in Arlington Plaza's common areas, including the exterior and parking lot lights.

On August 10, 2016, Arlington Plaza was the first stop on Acosta's maintenance route. Acosta noticed that the exterior lights of Building A were still on, which he attributed to an incorrectly set time clock or a malfunctioning photocell. A security guard let Acosta into Building A's locked electrical room. Acosta attempted to switch on the room's interior light but it did not come on. There nonetheless was enough light in the room for Acosta to "distinguish what was on the electrical panel" and to "get around." When Acosta did not find a time clock or circuit breaker in the room, he decided to go onto the roof to inspect the rooftop photocells.

Acosta saw a fixed ladder leading to the roof access, and after tugging on it to be sure that it was firmly attached, he began climbing the ladder. As he got near the top, he held onto the top rung of the ladder with one hand and unlatched the hatch with his other hand. After doing so, he realized that the ladder did not reach all the way to the roof. He climbed one more step, fully opened the hatch, and locked it into place. Acosta then climbed to the top of the ladder, grabbed the frame of the hatch, and swung one leg over the frame. As he pulled his other leg over the frame, the hatch released and fell on him, pinning him between the hatch and the frame. He felt a numbing sensation on the right side of his body and almost fell to the ground. He was able to maintain his grip, pushed the door back open, and pulled himself onto the rooftop.

Acosta reported the accident to his supervisor, who asked him to take photographs and try to determine why the hatch had fallen on him. From the roof, Acosta opened the hatch with one hand and unlatched the locking mechanism with his other hand. As he did so, the hatch fell shut. Because there was no resistance preventing the hatch from closing, Acosta believed that the spring designed to hold the hatch open was either "broken or missing or wrong type of spring." Acosta took pictures of the area, climbed off the roof, closed the hatch, and climbed down the ladder. As he descended, he noticed a handwritten note on the wall that said, "HATCH BROKEN! WATCH FINGERS AND HEAD ?." Acosta wished he had seen the handwritten warning prior to ascending the ladder.

The day after the accident, Acosta prepared a written statement for his employer describing the accident's cause. His statement said as follows: "On August 10, 2016, I arrived at Arlington Plaza in Riverside at 6:20 a.m. I performed a survey and had made several repairs throughout the property. I noticed a set of lights that were still on and needed to replace a bad photocell on the rooftop. At around 7:55 a.m. security had unlocked the roof access and I began to go up the ladder. I opened the roof hatch and noticed that the spring assist was broken. I latched the bar that holds the hatch open and proceeded to climb the last few steps of the ladder. The ladder didn't go all the way to the top like all other access ladders do, this one was about 3 feet shorter. I needed to get on the last step and throw my leg over [the] top of the hatch to get on the roof. While doing this, one of the pockets of my tool belt had caught the latch and caused the hatch to close and land on my back. My body was partially out and the metal tab that is used for a padlock had struck the right shoulder blade area and the rest of the door had hit the upper middle back area. [¶] I put the hatch back up and secured it, then got on the rooftop."

Although Acosta was able to continue working immediately after the accident, he felt worse as the day progressed and sought medical care. Eventually, Acosta was diagnosed with ruptured discs in his cervical and lumbar spine. He experienced pain, numbness, and weakness in his neck, back, shoulders, and legs, and ultimately underwent two spinal surgeries. Acosta continues to experience chronic pain and has been unable to work regularly since the accident.

III. The present action.

In August 2018, Acosta filed the present action against MAS and Athena (collectively, defendants) for negligence and premises liability. Defendants cross-claimed against Acosta's employer, Horizon, for contractual indemnity and declaratory relief.¹

IV. The cause of the accident and Acosta's awareness of the broken hatch.

A. The accident's cause.

Acosta's retained safety engineering expert, Brad Avrit, testified that the accident occurred because the compression cylinder designed to keep the roof hatch open was broken. Avrit explained that a compression cylinder contains a spring that is compressed when the hatch is closed. Once released, the spring helps to push the hatch open and then holds the hatch in the open position until it is actively pulled shut. The purpose of the compression cylinder is to assist in opening the approximately 100-pound hatch and to keep it from falling shut when the locking mechanism is released. Had the compression cylinder worked as intended, the hatch would have immediately opened six to 12 inches once it was unlocked and would have remained open until it was actively pulled shut. In this case, however, the cylinder was present, but the spring was missing. As a result, when the locking mechanism was touched, "the roof hatch just free falls down and closes."

Avrit testified that a secondary cause of the accident was that the top rung of the fixed ladder in the electrical room was about 30 inches below the roof hatch. This violated OSHA regulations, which require a fixed ladder to extend all the way to the roof. Avrit opined that the short ladder contributed to the accident because Acosta could not step from the top rung onto the roof, but had to lift his leg up and over the hatch, increasing the probability of coming into contact with the locking mechanism.

In Avrit's opinion, the hatch was "absolutely not safe" because "if the hold-open arm is just touched, ... just a minimal amount of pressure, that thing can come slamming down.... And it's—it's unnecessarily not safe. All you need to do is install those spring hinges and the lid will stay up. And it won't be until you pull on it that it will come down, and only come down as hard as you pull on it."

B. Acosta's awareness of the broken hatch.

Acosta testified that he...