Arck Services, LLC v. Bekam

original; internal quotations omitted.)

Here, Defendants met their burden of demonstrating that the first exception to the Privette doctrine does not apply. Defendants’ evidence shows that it did not retain control over any of the operative details of the work to be performed by Plaintiff. (See UMFs 4, 5, 9, 14 & 15) Further, the Defendants establish they were not involved in any way with the Plaintiff’s work on the roof and were not home when the incident occurred, thus showing they did not affirmatively contribute to the plaintiff falling. In opposition, plaintiff has failed to submit any evidence establishing a question of fact exists as to whether the Defendants either retained control or affirmatively contributed to his injuries.

The second Privette exception was discussed in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, and sets forth the limited circumstances in which the hirer of an independent 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.” (Id. at 664, fn. 3.)

Plaintiff argues, without success, that the hazard was concealed and that the defendants should have issued a warning. It is undisputed the roof was steep. There is no evidence suggesting any aspect of the roof was concealed from view. In fact, on the first day on the job, plaintiff slipped while on the roof but caught himself before falling off the roof. (UMF 7) Plaintiff recognized the hazard of working on a roof and requested additional support from Simmons. (UMF 9) Despite not receiving additional technical support, plaintiff proceeded with the work.

Based on the foregoing, the Court finds there is no triable issue of a material fact as to the issue of duty and that the Defendants are entitled to a judgment as a matter of law. The motion is therefore GRANTED.

Defendants to submit a proposed judgment.

Defendants are ordered to give notice of this ruling. 11 Arck Services, The unopposed motion to be relieved as counsel of record for LLC v. Bekam plaintiff Arck Services, LLC (Plaintiff) filed by Anthony W. Burton of AWB Law, P.C. is GRANTED.

Moving counsel has complied with the procedural requirements of C.R.C. 3.1362. The Court finds good cause to grant the relief requested on the merits. The motion is thus GRANTED.

The order granting relief is effective upon filing of a proof of service of the signed order on Plaintiff.