It’s one of the most quoted phrases in legal history: “Shouting fire in a [crowded] theater.”
It comes from the U.S. Supreme Court’s landmark 1919 decision in Schenck v. U.S. and has come to stand for the proposition that not all speech, in particular dangerous speech, is protected by the First Amendment.
The next case also involves a false alarm. But not of the First Amendment kind.
In Johnson v. The Raytheon Company, Inc., California Court of Appeal for the Second District, Case No. B281411 (March 8, 2019), a false alarm investigated by maintenance engineering staff led to a Privette Doctrine claim against a property owner when a ladder on which the maintenance staff was standing slipped on wet flooring.
Johnson v. Raytheon
Lawrence Johnson worked as a maintenance engineer for ABM Facilities Services, Inc. ABM was hired by Raytheon Company, Inc. to staff the control room at one of Raytheon’s facilities in Southern California. Among other things, control room staff monitored water cooling towers owned by Raytheon to ensure that the water in the cooling towers were maintained at minimum levels.
Johnson worked the graveyard shift. At 2:50 a.m. on February 20, 2013, Johnson received a low water level alarm. He called his supervisor who, as one might expect someone to do when awakened at 3:00 a.m. in the morning, told Johnson to do whatever he thought he should do. In other words, Johnson was alone.
At the time, Raytheon was undergoing a renovation project involving the removal and replacement of its water towers. System XT was the general contractor on the project, and two of its subcontractors, Brownco Construction Company, Inc. and Power Edge Solutions, Inc., were responsible for concrete work and the installation of electronic monitoring, respectively.
Johnson, unable to resolve the alarm, walked outside to the water tower in question where he saw an extension ladder left by Brownco leaning against the cooling tower wall. The cooling tower used to have a platform ladder for access but it had been removed during the renovations. Oh, and also, it had been raining, so the ground was wet.
I know what you’re thinking. It’s like the scene in pretty much any horror movie where the creepy music cues and you’re nearly yelling at the screen, “don’t open that door!,” or in this case, “don’t climb that ladder!” Well, we all know what happens next.
Johnson climbed the ladder even though (camera pan in) there was a sign on the ladder in all capital letters stating “CAUTION” and “THIS LADDER SECTION IS NOT DESIGNED FOR SEPARATE USE.” Because it was dark, Johnson didn’t see the warning.
Johnson made his way up the ladder. When he took a look over the 8-foot wall of the cooling tower … wait for it … there was no problem with the water level. However, as he made his way down the ladder, it slid, causing Johnson to come tumbling down on top of the ladder where he sustained serious injuries.
An investigation conducted after the accident revealed that the water level sensor installed by Power Edge had corroded and had to be replaced. That’s luck for you.
Johnson later sued Raytheon and Systems XT, alleging that Raytheon was liable because it retained control of the premises and that Systems XT ,as the general contractor, was liable for: (1) Power Edge’s failure to properly install the water level sensor to prevent it from becoming corroded; and (2) Brownco’s negligence in leaving its ladder out rather than putting it away. Both Raytheon and Systems XT filed motions for summary judgment, which were granted by the trial court, and Johnson appealed.
On appeal, the 2nd District Court of Appeal noted that the Privette Doctrine, named after the case in which it was first elucidated, Privette v. Superior Court (1993) 5 Cal.4th 689, stands for the general principal that “a hirer of an independent contractor was not liable for the negligence of the independent contractor.”
However, also noted the Court, the Privette Doctrine has given way to several exceptions including the following:
- Negligent Exercise of Retained Control: Under the negligent exercise of retained control exception, a hirer is liable for injuries sustained by an employee of an independent contractor if: (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.” Hooker v. Department of Transportation (2002) 27 Cal.4th 198.
- Hazardous Conditions on Property: Under the hazardous conditions on property exception, a hirer is liable for injuries sustained by an employee of an independent contractor if: ” [(1)] the landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, [(2)] the contractor did not know and could not have reasonably discovered this hazardous condition, and [(3)] the landowner failed to warn the contractor about this condition.” Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659.
Raytheon Was Not Liable Under Hooker
The Court of Appeal, focusing on the third factor of the negligent exercise of retained control exception, whether the hirer “affirmatively contribute[d]” to the employee’s injury, held that Johnson had failed to show that Raytheon affirmatively contributed to his injuries because the evidence presented to the trial court was that Raytheon provided ABM employees with access to numerous other safe ladders that Johnson did not choose to use on the night in question:
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 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 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.
Raytheon Was Not Liable Under Kinsman
The Court of Appeal, focusing on the second factor of the hazardous conditions on property exception, that the contractor did not know and could not have “reasonably discovered” the hazardous condition, held that Johnson could have reasonably discovered the hazard posed by the partial extension ladder by simply inspecting the ladder, and, once discovered, could have avoided the injury by using a different and safer ladder:
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 hazardous could have avoided it by obtaining an A-frame ladder instead.
In other words, Johnson should have read the warning signs on the ladder.
Systems XT Was Not Liable For Negligence
Johnson’s claim against Systems XT was for negligence rather than an exception to the Privette Doctrine. Negligence, explained the Court of Appeals, involves 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.”
Johnson alleged that Systems XT breached two duties, namely, that Systems XT failed to ensure that Power Edge installed a water level sensor that would not create false alarms and that System XT failed to ensure that Brownco safely secure its equipment including the partial extension ladder.
However, explained the Court of Appeals, while Johnson supported his allegation with contractual provisions contained in the various contracts and subcontracts between the parties, including a statement of work stating that the water cooling plant “must be a 24 x 7 ‘Fail-Safe’ operation,” general provisions providing that “contractors are responsible for keeping their work areas orderly and neat . . and free of . . . hazardous,” as well as specific provisions concerning ladders, which provided that “[w]hen not in use, store the ladder in an appropriate storage place,” Johnson had not shown that any of these contractual provisions created a duty owed by Systems XT to Johnson as a third-party beneficiary under these contractual provisions.
Johnson is an interesting case for reasons I think might surprise you. I believe the facts and law could have been interpreted and applied differently, fairly easily, by a different court. Instead of “Johnson should have just read the dang warning signs on the ladder,” I could see another court finding that the ladder shouldn’t have been there in the first place, and because the cooling towers were still “on line” Raytheon should have provided some means to provide safe access to them (after all, they had a platform ladder at one time, ostensibly for this very purpose). I could also see another court finding that Systems XT did in fact breach a duty to Johnson because the safety provisions in the contracts was not intended to benefit some amorphous entity (i.e., Raytheon), but among others, the employees of Raytheon who were working alongside an ongoing construction project.
But here’s the thing. It wasn’t another court. It was the 2nd District Court of Appeals. And in the last few years, the 2nd District Court of Appeals has come out with decisions scaling back exceptions to the Privette Doctrine, including last year’s Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078 case, and Khosh v. Staples Construction Company, Inc. (2016) 4 Cal.App.5th 712 case decided two years earlier.
Perhaps we have an appellate court split in the making?