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,                              B281411

  Plaintiff and Appellant,                     (Los Angeles County
                                               Super. Ct. No. BC562444)
        v.

THE RAYTHEON COMPANY,
INC. et al.,

  Defendants and Respondents.


      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.
     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




                                   2
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.


                                 3
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.


                                4
       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.




                                5
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.


                                  6
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.”




                                 7
      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.


                                8
ABM employees could simply go into the room and obtain A-
frame 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




                                 9
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.




                               10
      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


                                 11
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.)


                                12
       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




                                  13
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.)




                               14
       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




                                15
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




                               16
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.




                                17
      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




                                18
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.


                                19
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




                                20
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.




                                21
      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




                                 22
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




                                23
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




                               24
“ ‘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-party-
beneficiary 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




                                25
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.




                                 26
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.




                               27
Filed 3/27/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION EIGHT

LAURENCE JOHNSON,                   B281411

  Plaintiff and Appellant,          (Los Angeles County
                                    Super. Ct. No. BC562444)
       v.
                                      ORDER CERTIFYING
RAYTHEON COMPANY et al.,                OPINION FOR
                                        PUBLICATION
  Defendants and Respondents.
                                      [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.
