By Ping Wang and Catherine M. Dacre

Seyfarth Synopsis: California’s Second District Court of Appeal recently reversed a 12.6 million jury verdict in favor of an independent contractor’s employee for injuries he suffered from a broken roof hatch of a commercial building. In reversing the verdict, the court held that the building’s owner and management company were not liable because they exercised no retained control over the work site, and plaintiff and his employer could reasonably have ascertained the hazardous condition of the site.


In Acosta v. MAS Realty, LLC. et al., the plaintiff worked for a lighting company, which had contracted to maintain the lights in a commercial building. When plaintiff tried to access the roof using a fixed ladder and hatch, the broken hatch slammed shut, injuring him.

Plaintiff sued the building’s owner and management company for negligence and premises liability, contending that they had failed to repair a dangerous condition of which they were aware, or to warn him of it. At trial, the jury found the defendants failed to warn plaintiff regarding the broken hatch and awarded $12.6 million damages.

Jury Verdict Reversed

The Appellate Court reversed, based on the Supreme Court Privette case and its progeny.  The Court found that a property owner who hires an independent contractor is 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. See, Privette v. Superior Court, 5 Cal. 4th 689 (1993).

The court also found plaintiff and his employer could reasonably have ascertained the hazard because 1) plaintiff used the roof hatch frequently enough to observe the broken conditions of the hatch, 2) there was a  posted warning about the broken hatch, and 3) the fixed ladder that plaintiff used did not extend to the roof.  The jury verdict was reversed and judgment entered for defendants. 

Hands Off Approach  

California law provides protection against dangerous condition/premises liability claims by employees of independent contractors, provided the property owner 1) does not exercise retained control over the work site, or 2) can establish that the contractor was aware or could reasonably have ascertained the  hazardous condition before any injury occurred.