Open & Known Hazards Under the Kinsman Exception to Privette
February 15, 2018 —
Frances Ma & Lawrence S. Zucker II – Haight Brown & Bonesteel LLP Publications & InsightsGonzalez v. Mathis, 2018 WL 718528 confirms the difficulties a defendant will face when trying to overcome the Kinsman exception to the
Privette doctrine on a dispositive motion when dealing with an open and obvious hazard. There, a professional window washer fell off a roof while walking along a parapet wall constructed by the owner of a home.
The window washer filed suit against the homeowner and alleged three dangerous conditions on the roof: (1) the parapet wall forced those who needed to access a skylight to walk along an exposed two-foot ledge that lacked a safety railing; (2) dilapidated and slippery roof shingles; and (3) the lack of tie off points that would allow maintenance workers to secure themselves with ropes or harnesses. The homeowner filed a motion for summary judgment under
Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny which prohibits an independent contractor from suing his or her hirer for workplace injuries (
“Privette doctrine”).
There are two exceptions to the
Privette doctrine. First, a hirer cannot avoid liability when he or she exercises control over the manner and means in which a contractor does his or her work and that control contributes to the injuries sustained – known as the
“Hooker exception” (premised on the holding of
Hooker v. Department of Transportation (2002) 27 Cal.4th 198). Second, a hirer may be found liable if he or she fails to warn the contractor of a concealed hazard on the premises – known as the
“Kinsman exception” (premised on the holding of
Kinsman v. Unocal Corp. (2005)).
Reprinted courtesy of
Frances Ma, Haight Brown & Bonesteel LLP and
Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Ms. Ma may be contacted at fma@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
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Jury Could Have Found That Scissor Lift Manufacturer Should Have Included “Better” Safety Features
January 02, 2024 —
Garret Murai - California Construction Law BlogA few years ago I listened to an NPR segment called “
What Can Kids Learn by Doing Dangerous Things?” It was about a summer program called the Tinkering School where kids can learn to build things, using tools of course, including power tools.
The founder of the program, Gever Tulley, also wrote a book entitled
50 Dangerous Things (You Should Let Your Children Do), in which he argued that while well-intentioned, children today are overly protected, and that giving children exposure to “slightly” dangerous things can help foster independence, responsibility, and problem-solving as well as a healthy dose of caution.
The plaintiff in the next case might have benefitted from that program.
In
Camacho v. JLG Industries Inc., 93 Cal.App.5th 809 (2023), the Court of Appeals examined whether the manufacturer of a scissor lift should have incorporated “better” safety features when a construction worker fell from the lift.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
High-Rise Condominium Construction Design Defects, A Maryland Construction Lawyer’s Perspective
July 15, 2015 —
Nicholas D. Cowie – Maryland Condo Construction Defect Law BlogThe increased migration from suburbs to metropolitan areas has accompanied an increase in high-rise construction, including the development of high-rise condominium buildings. The resulting metamorphosis of urban skylines, such as seen from Maryland’s Baltimore harbor, has also brought with it many complex construction law and construction litigation issues. Our law firm’s Maryland condominium construction law practice is increasingly called upon to resolve disputes involving high-rise condominium construction design defects between condominium associations, developers, contractors, builders, and design professionals arising out of the construction of high-rise buildings.
A condominium building is typically considered to be a high-rise when it is approximately seven or more stories above grade according to the National Fire Protection Association Life Safety Code, which defines a high-rise as being 75 feet (23 meters) measured from the lowest level accessible to fire department vehicles up to the floor level of the highest occupiable story. High-rise buildings may be residential (e.g., condominiums or multifamily apartment buildings), commercial (e.g., commercial office or retail space), or mixed-use structures. A mixed-use high-rise development might contain retail space, office space, a parking garage, apartments, and condominiums, each owned or maintained by separate entities and each sharing common expenses for the building.
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Nicholas D. Cowie, Cowie & Mott, P.A.Mr. Cowie may be contacted at
ndc@cowiemott.com
Ordinary Use of Term In Insurance Policy Prevailed
June 08, 2020 —
David Adelstein - Florida Construction Legal UpdatesThere are cases where you feel for the plaintiff, but understand why they did not prevail, despite the creative efforts of their counsel. The case of Robinson v. Liberty Mutual Ins. Co., 958 F.3d 1137 (11th Cir. 2020) is one of these cases.
In Robinson, the plaintiff moved into a home that turned out to be infested with a highly venomous spider. Efforts to eradicate the spider proved unsuccessful and the spider apparently infested the entire home. The plaintiff made a claim under their homeowner’s property insurance policy arguing that their home suffered a physical loss caused by the spider infestation as the spider presented an irreparable condition that rendered the home unsafe for occupancy. (It probably did!). The property insurer denied coverage because the policy had an insurance exclusion for loss caused by birds, vermin, rodents, or insects.
The insurer claimed the spider is an insect or vermin and, therefore, there is no coverage based on the exclusion. The insured creatively argued that “scientifically speaking” a spider is an arachnid and not an insect. Neither the trial court nor the Eleventh Circuit found this argument persuasive.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Benefits and Pitfalls of Partnerships Between Companies
December 21, 2016 —
Aarni Heiskanen – AEC BusinessTo bring innovations to the market, companies almost always need partnerships. Partnerships can offer scalability, productivity, and open up new markets. However, partnerships are not easy to establish and manage.
The benefits of partnering
Construction companies have always done joint ventures. The reason has been to simply be able to bid for and deliver a project that would be too big for one company at that specific moment. Partnering allows you to become larger than you are and to get work that would otherwise be out of your reach. It also lets you spread the risk in a demanding project among the members.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aarni@aepartners.fi
Construction Picks Up Post-COVID and So Do Claims (and A Construction Lawyer Can Help)
September 12, 2022 —
Christopher G. Hill - Construction Law MusingsI’m a construction attorney and proud to be one. Over the past couple of years, my expertise (and that of my fellow members of the Virginia construction bar) has been challenged by everything from COVID-related shutdowns to supply chain issues to unanticipated price increases. With each of these obstacles placed in front of my clients and friends in the Virginia construction industry, I have gotten calls and questions as to how to best handle the various issues facing the construction world.
Needless to say, changes in price or material availability occurring between the date of a contract’s signing and the (likely delayed) start or completion of the contractual scope of work have caused some consternation and claims. Many of these claims did not come forward or reach my, or others, desk until after the world reopened post-COVID and construction began to speed up and money started to be owed. While one “easy” answer, particularly for those “upstream” in the payment chain, is “tough luck, you gave me a fixed price, signed a contract, and we expect you to honor it,” this may not be the best and most practical way to get the job done.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
What is a “Force Majeure” Clause? Do I Need one in my Contract? Three Options For Contractors, Subcontractors and Suppliers to Consider
June 20, 2022 —
William L. Porter - Porter Law GroupIn the world of the building and construction industry, the general rules of contracting are fairly simple. A supplier agrees to supply equipment or materials for a specific price and within a certain time frame, does so, and is paid an agreed sum. Likewise, contractors and subcontractors agree to build structures per plans and specifications within certain time frames and are paid accordingly. Pretty simple. But what happens when some outside event makes performance impossible or unduly expensive or substantially delayed? What happens, for example, if a ship is sitting off the coast of Long Beach for three months with equipment ordered for the project and it cannot be unloaded due to a labor shortage? What if government mandates cause factories that build needed equipment to close due to an epidemic or pandemic? What if the supply warehouse holding the equipment until it is ready for installation unexpectedly burns to the ground? What if a Russian missile blows up the factory in Ukraine where the intended equipment is being manufactured? What happens then? Who bears the financial consequence?
A properly constructed “force majeure” clause may provide the answer to these questions. The Marriam-Webster Dictionary defines “force majeure” as a literal translation from the French meaning “a superior or irresistible force.” It further defines the term as “an event or effect that cannot be reasonably anticipated or controlled.” The Oxford Dictionary defines force majeure as “unexpected circumstances, such as a war, that can be used as an excuse when they prevent somebody from doing something that is written in a contract.”
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
United States Supreme Court Limits Class Arbitration
May 13, 2019 —
Jeffrey K. Brown & Raymond J. Nhan - Payne & FearsOn April 24, 2019, the United States Supreme Court held that the Federal Arbitration Act ("FAA") bars orders requiring class arbitration when an agreement is ambiguous about the availability of such a procedure. Lamps Plus v. Varela, 587 U.S. __ , 2019 WL 1780275, (2019). In Lamps Plus, the Court clarified a 2010 case in which it held that a court may not compel arbitration on a class-wide basis when an agreement is silent on the availability of class arbitration. Stolt-Nielsen S.A. v. Animal Feeds Int'l Corp., 559 U.S. 662, 687 (2012).
In Lamps Plus, a 5-4 decision authored by Chief Justice Roberts, the Court explained that because the FAA envisions the use of traditional individualized arbitration, a party cannot be forced under the FAA to submit to class arbitration unless the parties explicitly agreed to do so. Because class arbitration does not share the benefits of traditional arbitration -- lower costs, greater efficiency and speed, and the parties' choice of a neutral -- the FAA requires more than an "ambiguous" agreement to show that the parties bound themselves to arbitrate on a class-wide basis. Unlike individualized arbitration, or even traditional class actions, class arbitration raises serious due process concerns because absent class members will have limited judicial review. Based on these critical differences between individual and class arbitration, the Court reiterated in Lamps Plus that "courts may not infer consent to participate in class arbitration absent an affirmative contractual basis for concluding that the party agreed to do so."
Reprinted courtesy of
Jeffrey K. Brown, Payne & Fears and
Raymond J. Nhan, Payne & Fears
Mr. Brown may be contacted at jkb@paynefears.com
Mr. Nhan may be contacted at rjn@paynefears.com
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