California Court of Appeals, Fourth District, First Division
FOR PARTIAL PUBLICATION] [*]
[Copyrighted Material Omitted]
Cal.Rptr.3d 822] APPEAL from a judgment of the Superior Court
of San Bernardino County, Donna G. Garza, Judge. Affirmed.
(Super. Ct. No. CIVRS 1302604)
Offices of Muhar, Garber, Av & Duncan, Thomas M. Butler;
Greines, Martin, Stein & Richland, Los Angeles, Robert A.
Olson, Cynthia E. Tobisman and Geoffrey B. Kehlmann for
Defendants, Intervener, and Appellants.
Offices of Robert F. Brennan and Robert F. Brennan, La
Crescenta, 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.
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.
FACTUAL 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 the
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 [256 Cal.Rptr.3d 823]
the roof was dangerous. After climbing an interior ladder,
Gordon opened the unlocked hatch and he and Mark went on the
were not wearing fall protection gear. None was feasible for
inspecting the flat roof and a parapet wall protected against
falling off the edge.
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.
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.
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.
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."
jury determined defendants were negligent and awarded Gordon