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Gordon v. ARC Manufacturing, Inc.

California Court of Appeals, Fourth District, First Division

December 19, 2019

BEAU GORDON, Plaintiff and Respondent,
ARC MANUFACTURING, INC., et al., Defendants and Appellants GOLDEN EAGLE INSURANCE CORPORATION, Intervener and Appellant.


          APPEAL from a judgment of the Superior Court of San Bernardino County No. CIVRS 1302604, Donna G. Garza, Judge. Affirmed.

          Law Offices of Muhar, Garber, Av & Duncan, Thomas M. Butler; Greines, Martin, Stein & Richland, Robert A. Olson, Cynthia E. Tobisman and Geoffrey B. Kehlmann for Defendants, Intervener, and Appellants.

          Law Offices of Robert F. Brennan and Robert F. Brennan for Plaintiff and Respondent.

          DATO, J.

         Beau Gordon, a professional roofer, fell 35 feet through a "camouflaged hole" in a warehouse roof he was inspecting.[1] For his resulting head injury, a jury awarded Gordon approximately $875, 000 against the building's owner, ARC Manufacturing, Inc. (ARC) and Joseph M. Meyers.[2]

         On appeal, the main issue is whether the trial court correctly refused to instruct on primary assumption of risk where, as here, defendants did not hire or engage Gordon. We conclude that primary assumption of risk does not apply, reject appellants' other contentions, and affirm the judgment.


         Gordon has worked on several hundred roofs in his professional career. West Pack, a prospective buyer of ARC's 64, 000 square foot commercial building, engaged him to inspect the roof, determine if "anything was wrong," and estimate costs to repair. Gordon did not charge West Pack for the inspection.

         When Gordon and another experienced roofer who accompanied him, Mark W., arrived at the warehouse, an ARC employee, Shayne H., told them the roof" 'leaks everywhere'" during rain and other roofers who had recently been on the roof reported that the southeast corner was unsafe. Gordon replied they would "steer clear" of that area. Shayne gave no other warnings and did not limit their access to the roof.[3] Gordon told Shayne that after looking inside for "potential trouble spots," he and Mark would go on the roof.

         Inside the building, Gordon noticed only "a few little minor things"-nothing indicating the roof was dangerous. After climbing an interior ladder, Gordon opened the unlocked hatch and he and Mark went on the roof. They were not wearing fall protection gear. None was feasible for inspecting the flat roof and a parapet wall protected against falling off the edge.

         At the southeast corner, Gordon saw degraded roofing materials, indicating a long-standing problem. The border of the damaged area was marked with orange paint-something professional roofers commonly do to warn of a dangerous area. Although this was "a very small portion" of the entire roof, Gordon was surprised ("dumbfounded") by the extent of damage there, since his inspection inside showed only minor problems. Gordon and Mark avoided walking near this area.

         The remainder of the roof looked fine. After completing the visual inspection, the men walked back to the hatch, giving "wide berth" to the damaged section.

         About 20 or 30 feet from the damaged area, and in an area where the roof was "absolutely and completely normal looking," the roof suddenly went out from under Gordon. Instinctively, he extended his arms over the hole, supporting himself while his legs dangled through the opening. Mark laid flat and grabbed onto Gordon's arm.

         Inside, a forklift driver raised a pallet underneath Gordon's legs, but even at its maximum extension, was 15 feet too short. Five minutes later, the roof around Gordon collapsed, pulling Mark towards the hole. He let go of Gordon because he "didn't want to die." Gordon landed on the upraised pallet and then fell the remaining 20 feet to the floor, striking his head.

         Mark explained that Gordon fell because rotted wood was concealed under a new covering (cap sheet):

         "Q: [W]hen you came up out of the hatch, ... was there a safe path way from the hatch to the rest of the roof that avoided the dangerous area?

         "A: Yes. In fact, we were on that same safe path with no indication whatsoever on our return that the roof-you have to understand, the roof was not in any way visibly damaged, defrayed, even the granules which would-which would deteriorate was-were still in place. The granules, which are the first things to give up in a deteriorated condition-the granules fall off and then it's a black roof. Well, the granules were perfect. The roof was a hundred percent camouflaged hole where he fell through and the surrounding areas."

         The jury determined defendants were negligent and awarded Gordon $874, 934.45.



         Defendants asked the court to instruct the jury with CACI No. 473 on primary assumption of risk, as follows:

         "Beau Gordon claims that he was harmed by ARC Manufacturing or Joseph M. Meyers while Beau Gordon was performing his job duties as a roofer. ARC Manufacturing and Joseph M. Meyers are not liable if Beau Gordon's injury arose from a risk inherent in the occupation of a roofer. However, Beau Gordon may recover if he proves all of the following:

         "1. That ARC Manufacturing or Joseph M. [Meyers] unreasonably increased the risks to Beau Gordon over and above those inherent in roofing;

         "or that ARC Manufacturing or Joseph M. [Meyers] failed to warn Beau Gordon of a dangerous condition that Beau Gordon could not have known about as part of his job duties;

         "or that the cause of Beau Gordon's injury was not related to the inherent risk;

         "2. That Beau Gordon was harmed; and

         "3. That ARC Manufacturing or Joseph M. [Meyers's] conduct was a substantial factor in causing Beau Gordon's harm."

         The court refused, stating "Not every roof in and of itself, two feet off, or five feet off, is inherently dangerous which would warrant an assumption of the risk type of instruction."[4] On appeal, defendants contend that primary assumption of risk applies "as a matter of law to a roofer who is injured while inspecting a roof," or at least is a jury issue.

         A. Primary Assumption of Risk-An Overview

         "Generally, each person has a duty to exercise reasonable care in the circumstances and is liable to those injured by the failure to do so." (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 160 (Avila).) "The only exceptions to this rule are those created by statute or clear public policy." (Harry v. Ring the Alarm, LLC (2019) 34 Cal.App.5th 749, 758 (Harry).)

         "The traditional version of the assumption of risk doctrine required proof that the plaintiff voluntarily accepted a specific known and appreciated risk. [Citations.] The doctrine depended on the actual subjective knowledge of the given plaintiff [citation] and, where the elements were met, was an absolute defense to liability for injuries arising from the known risk." (Avila, supra, 38 Cal.4th at p. 161.)

         "California's abandonment of the doctrine of contributory negligence in favor of comparative negligence [citation] led to a reconceptualization of the assumption of risk." (Avila, supra, 38 Cal.4th at p. 161.) In Knight v. Jewett (1992) 3 Cal.4th 296');">3 Cal.4th 296');">3 Cal.4th 296');">3 Cal.4th 296 (Knight), a plurality of the California Supreme Court stated there are two species of assumption of risk: primary and secondary. (Id. at pp. 308-309.)[5] "Primary assumption of the risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms." (Avila, at p. 161.) Secondary assumption of risk arises when the defendant owes a duty of care, but the plaintiff knowingly encounters the risks attendant on the defendant's breach of that duty. (Knight, at p. 308.)

         "In primary assumption of risk cases, 'the question whether the defendant owed a legal duty [of care] to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff's conduct, but rather on the nature of the activity... in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity....'" (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1121 (Priebe), italics omitted.)

         Primary assumption of risk cases often involve sports and recreational activity where risks cannot be eliminated without altering the fundamental nature of the activity. (E.g., Knight, supra, 3 Cal.4th 296');">3 Cal.4th 296');">3 Cal.4th 296');">3 Cal.4th 296 [social game of touch football]; Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148');">55 Cal.4th 1148 [amusement park bumper car ride]; Luna, supra, 169 Cal.App.4th 102');">169 Cal.App.4th 102 [tripping over a tie line used to secure a volleyball net]; Swigart v. Bruno (2017) 13 Cal.App.5th 529');">13 Cal.App.5th 529 [horseback riding]; Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650');">175 Cal.App.4th 650 [plaintiff burned at the Burning Man Festival]; Griffin v. The Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490');">242 Cal.App.4th 490 [fright from haunted house amusement].)

         B. Occupational Assumption of the Risk

         The duty to use reasonable care to avoid injuring others normally extends to those engaged in hazardous work. For example, highway workers who face the occupational hazard of working in traffic may recover for injuries caused by a third party's negligent driving. (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 536 (Neighbarger).) This is because the roadworker's task is to fix the road, not to face oncoming traffic.

         Although primary assumption of risk cases often involve recreational activity, the doctrine also applies in certain contexts involving inherent occupational hazards. "The bar against recovery in that context first developed as the 'firefighter's rule,' which precludes firefighters and police officers from suing members of the public for the conduct that makes their employment necessary. [Citations.] After Knight, [supra, 3 Cal.4th 296, ]... the firefighter's rule [was viewed] as a variant of primary assumption of risk, 'an illustration ...

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