California Court of Appeals, Fourth District, First Division
FOR PARTIAL PUBLICATION[*]
from a judgment of the Superior Court of San Bernardino
County No. CIVRS 1302604, Donna G. Garza, Judge. Affirmed.
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.
Offices of Robert F. Brennan and Robert F. Brennan for
Plaintiff and Respondent.
Gordon, a professional roofer, fell 35 feet through a
"camouflaged hole" in a warehouse roof he was
inspecting. 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.
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.
AND PROCEDURAL BACKGROUND
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
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. Gordon told Shayne that after looking
inside for "potential trouble spots," he and Mark
would go on the roof.
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
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
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.
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.
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.
explained that Gordon fell because rotted wood was concealed
under a new covering (cap sheet):
[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?
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
jury determined defendants were negligent and awarded Gordon
THE COURT CORRECTLY REFUSED TO INSTRUCT ON PRIMARY
ASSUMPTION OF RISK
asked the court to instruct the jury with CACI No. 473 on
primary assumption of risk, as follows:
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:
That ARC Manufacturing or Joseph M. [Meyers] unreasonably
increased the risks to Beau Gordon over and above those
inherent in roofing;
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;
that the cause of Beau Gordon's injury was not related to
the inherent risk;
That Beau Gordon was harmed; and
That ARC Manufacturing or Joseph M. [Meyers's] conduct
was a substantial factor in causing Beau Gordon's
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." 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.
Primary Assumption of Risk-An Overview
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
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.)
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.) "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.
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.)
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].)
Occupational Assumption of the Risk
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.
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