Landlord-Tenant Relationship Raises More Questions

Landlord-Tenant Relationship Raises More Questions

Introduction

In Ramirez v. PK I Plaza[i], the court of appeals held terms of leases between landlord and tenant did not delegate to tenant a duty involving the condition of the building’s roof.  Thus, the Privette doctrine did not shield landlord from direct liability.

 

Facts and Procedural Background

Facts

Freeway Insurance Services Inc. (Freeway) leased an office suite from Kimco, who owns a Livermore shopping center.  Subsequently, Freeway vacated the suite.  Under the lease, Freeway became responsible for removing an exterior sign from the suite.  Kimco offered to remove the sign and bill the cost to Freeway; however, Freeway hired Ramirez, a self-employed contractor.

On November 6, 2017, Ramirez arrived at the site to remove the site, and, after waiting for 20 minutes outside, a woman from Kimco’s office arrived and gave him the keys to Freeway’s suite.  Ramirez asked the woman if a security guard or maintenance worker was onsite because they usually had “all the keys including for the attic access.”[ii]  It is undisputed Kimco did not provide directions to Ramirez on how to perform his job.

Ramirez went onto the roof to search for the electrical box which powered the sign and needed to be disconnected before he could complete the job.  He used his own ladder to climb onto the roof.  Ramirez believed the electrical box might be in the cupola, so he used a flashlight to look inside.

Ramirez climbed into the cupola through the access door, traveled 12 feet inside, and fell through the opening and the drywall of the ceiling below.  He landed on the sidewalk and sustained serious injuries.

 

Procedural Background

Ramirez and his wife sued Kimco, alleging general negligence, premises liability, negligence per se, and negligent infliction of emotional distress.  His wife brought separate causes of action for negligent infliction of emotional distress.

Kimco moved for summary judgment, claiming it did not owe a duty of care to plaintiffs.  Kimco argued the roof’s “opening was neither a concealed condition nor . . . unascertainable to Ramirez,” and its duty to “tak[e] proper precautions to protect against obvious hazards in the workplace . . . was delegated to [him] under the Privette doctrine.”[iii] Plaintiffs responded the Privette doctrine does not apply because there was no employment relationship between Ramirez and Kimco.  The trial court granted Kimco’s motion for summary judgment, concluding that it had no duty to ensure Ramirez’s safety because the Privette doctrine applied, even though Kimco did not directly hire Ramirez.

 

Analysis

The Privette doctrine applies if the injured party is the employee of an independent contractor or the independent contractor itself, so long as the duty to provide a safe workplace has been delegated to the contractor.[iv]  The Privette doctrine has two primary exceptions, where the hirer may nonetheless be liable to an independent contractor or the contractor’s employee because the “hirer has failed to effectively delegate all responsibility for workplace safety to the independent contractor.”[v]

First, under Hooker, “a hirer may be liable when it retains control over any part of the independent contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the worker’s [or contractor’s] injury.”[vi]  Second, under Kinsman, “a landowner who hires an independent contractor may be liable if the landowner knew, or should have known, of a concealed hazard on the property that the contractor did not know of and could not have reasonably discovered, and the landowner failed to warn the contractor of the hazard.”[vii]

Here, the court agreed with plaintiffs’ claim Privette is inapplicable because it established “the general rule . . . that a non-negligent hirer cannot be held liable for injuries of an independent contractor,” and there was no relationship between Ramirez and Kimco.[viii]  Thus, the Privette doctrine does not apply, and summary judgment was improperly granted.

The court reasons in the premises-liability context, “[w]hen the hirer is also a landowner, part of that delegation includes taking proper precautions to protect against obvious hazards in the workplace” or against concealed hazards of which the independent contractor is or should be aware of.[ix]  Here, Kimco did not hire either Ramirez or Freeway; thus, Kimco did not delegate a responsibility for ensuring the worksite’s safety, either directly or “through the chain of delegation.”[x]

Further, Kimco did not delegate to Freeway a duty involving the roof’s condition merely by virtue of their landlord-tenant relationship, and the lease’s terms do not establish Kimco delegated to Freeway a duty involving the roof’s condition.  The lease provided Freeway would “have the non-exclusive right to use the Common Area,” which included the roof.[xi]  Under the lease, Kimco retained possession and control of the roof, including maintenance; thus, it did not delegate to Freeway a general duty of reasonable care with regard to dangerous conditions on the roof.

 

Conclusion

In conclusion, Kimco retained possession and control of the roof, and if any entity acted negligently with regard to the roof’s condition, it was Kimco, not Freeway.  Thus, because Kimco did not delegate a duty involving the roof, the Privette doctrine does not shield it from direct liability for any tortious breach of that duty.

Ramirez is an important decision for property owners because it places limits on the Privette doctrine.  Where the Privette doctrine once shielded property owners from liability for workers injured on their premises, landowners may now be subject to potential liability.  To limit liability under Privette, landlords should delegate specific duties, such as making specific repairs, to the tenant under the terms of the lease.

 

 

 

 

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Sources


[1] Ramirez v. PK I Plaza 580 SC LP, No. A162593, 2022 WL 16846274, at 3 (Cal. Ct. App. Nov. 10, 2022).

[1] Ramirez v. PK I Plaza, at 1.

[1] Ramirez v. PK I Plaza, at 2.

[1]  Sandoval, supra, 12 Cal. 5th at pp. 270-271.

[1] Gonzalez, supra, 12 Cal.5th at pp. 38,42.

[1] Gonzales, at p. 38, citing Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 202.

[1] Gonzalez, at p. 38, citing Kinsman, supra, 37 Cal.4th at p. 664.

[1] Ramirez v. PK I Plaza, at 5.

[1] Ramirez v. PK I Plaza, at 6.

[1] Id.

[1] Ramirez v. PK I Plaza, at 8.