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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.


Page 706

[Copyrighted Material Omitted]

Page 707

         [256 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)


         Law 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.

         Law Offices of Robert F. Brennan and Robert F. Brennan, La Crescenta, for Plaintiff and Respondent.


         DATO, J.

Page 708

          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 [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 roof. They

Page 709

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.

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