                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 12 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RICHARD DOBBS,                                  No.    18-56054

                Plaintiff-Appellant,            D.C. No.
                                                5:16-cv-02547-JFW-KK
 v.

TXI RIVERSIDE, INC., DBA TXI                    MEMORANDUM*
Riverside Cement Co.; UNITED RENTALS
(NORTH AMERICA), INC.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                    Argued and Submitted December 13, 2019
                             Pasadena, California

Before: BOGGS,** WARDLAW, and BEA, Circuit Judges.

      Richard Dobbs was employed by an independent contractor who was hired

by defendant TXI Riverside, Inc. (“TXI”) to repair its forklift. He was told that the

forklift had a transmission problem that prevented it from shifting gears. Dobbs


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
was seriously injured when a parking-brake defect—attributable to faulty

rewiring—caused the forklift to roll over Dobbs even though the parking brake

was engaged. Dobbs appeals the district court’s grants of summary judgment

against him and in favor of TXI and United Rentals (North America), Inc. (“United

Rentals”), another contractor who was hired by TXI to repair the forklift in the

months preceding Dobbs’s accident. We review de novo. Flores v. City of San

Gabriel, 824 F.3d 890, 897 (9th Cir. 2016). We reverse in part and affirm in part.

      With respect to TXI, although the district court correctly held that what is

known as the “Privette rule” applies to Dobbs’s negligence claim against TXI, see

Privette v. Superior Court, 854 P.2d 721 (Cal. 1993), it erred in concluding that

there was no triable issue of material fact as to whether any exception to the

Privette rule saves Dobbs’s negligence claim from summary judgment.

Specifically, triable issues of material fact exist regarding the applicability of an

exception to the Privette rule set forth in the California Supreme Court’s decision

in Kinsman v. Unocal Corp., 123 P.3d 931 (Cal. 2005).1

      Under the exception established in Kinsman, “[t]he hirer [of an independent



1
  The district court did not err in concluding that Dobbs failed to produce evidence
at the summary judgment stage from which a reasonable juror might find that an
exception to the Privette rule set forth in Hooker v. Department of Transportation,
38 P.3d 1081 (Cal. 2002) could apply to Dobbs’s negligence claim against TXI.
Dobbs failed to produce any evidence from which a reasonable juror could find
that TXI exercised any retained control over Dobbs’s work.

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contractor] . . . may be independently liable to the contractor’s employee . . . if:

(1) it knows or reasonably should know of a concealed, preexisting hazardous

condition on its premises; (2) the contractor does not know and could not

reasonably ascertain the condition; and (3) the landowner fails to warn the

contractor.” Kinsman, 123 P.3d at 940. As an initial matter, Appellees provide no

persuasive reason to limit the Kinsman exception to premises-liability

cases. Indeed, no language in Kinsman itself limits the applicability of its holding

to premises-liability cases.2 Focusing then on the Kinsman exception’s elements, a

reasonable juror could find based on evidence produced at the summary judgment

stage that TXI at least reasonably should have known of the parking-brake defect

that allegedly caused Dobbs’s injuries. The TXI supervisor who interacted with

Dobbs at the worksite admitted that he was aware of parking-brake problems prior

to the accident, but never mentioned any such issues to Dobbs. Another TXI

employee testified that he assumed Dobbs was hired to fix the parking brake. A

reasonable juror could infer from these statements that TXI knew of relevant

problems with the parking brake, which problems were not communicated to

Dobbs.

      Another reasonable inference from evidence in the summary judgment


2
  Knowledge of the pre-existing hazardous condition is the keystone to liability.
For purposes of giving rise to a duty of care, ownership of machinery is
indistinguishable from ownership of land.

                                           3
record is that TXI, rather than some third party, negligently altered the parking

brake’s wiring system, which alteration caused the accident. TXI work orders

reflect that there were parking-brake issues predating the accident, including that

the telehandler’s parking-brake system had been disengaging when it should not

have been. But there were no records of invoices from a non-TXI repairer

corresponding to repair of such disengagement issues. A reasonable juror could

infer from this evidence that TXI internally completed whatever repairs were

necessary, which could have included the negligent alteration of the parking

brake’s wiring system. If a reasonable juror could find that TXI negligently

repaired the telehandler’s parking brake system in a manner that created the

concealed hazard that caused Dobbs’s injuries then, as the California Supreme

Court has explained, TXI “necessarily [was] or should [have been] aware” of the

hazard, so to invoke the Kinsman exception. Kinsman, 123 P.3d at 940 n.3

(emphasis added).

      A reasonable juror could also find based on evidence produced at the

summary judgment stage that Dobbs could not reasonably have discovered the

problem with the parking brake before the accident. TXI hired Dobbs to fix the

forklift, telling him only that it had a transmission problem. The relevant

alterations to the parking brake’s wiring system that allegedly caused the

telehandler to malfunction and injure Dobbs were beneath a cover, under the


                                          4
driver’s seat of the telehandler. Although another technician who inspected the

forklift after the accident was able to discover the parking-brake defect, he did so

with the knowledge that the forklift had run over someone, and only after hours of

troubleshooting. Viewing the evidence in the light most favorable to Dobbs, a

reasonable trier of fact could find that a mechanic hired to fix a transmission issue

could not reasonably have discovered a parking-brake defect hidden in a portion of

the machine unrelated to the transmission.

      Turning to United Rentals, Dobbs fails to create a triable issue as to whether

United Rentals breached any duty it may have owed him. The evidence shows that

United Rentals was hired to check the parking brake only once before the accident,

and that it found the forklift did not move when the parking brake was engaged.

No reasonable jury could find that United Rentals rewired a brake system that (in

its opinion) was not defective. The record also suggests that TXI experienced

problems with parking-brake disengagement before United Rentals worked on the

forklift, further negating any inference that United Rentals caused the defect. Any

inference that United Rentals was negligent in checking whether the parking brake

was operable is unsupported by the record and entirely speculative. The district

court therefore did not err in granting summary judgment. See Nelson v. Pima

Cmty. Coll., 83 F.3d 1075, 1081–82 (9th Cir. 1996) (Neither “[t]he mere existence

of a ‘scintilla’ of evidence” nor “mere . . . speculation” is enough to preclude


                                          5
summary judgment.).

      The judgment in favor of TXI against Dobbs is REVERSED. The

judgment in favor of United Rentals against Dobbs is AFFIRMED. The case is

REMANDED for further proceedings consistent with this memorandum

disposition. The parties shall bear their own costs on appeal.




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