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Gordon v. ARC Manufacturing, Inc.

Court of Appeal of California, Fourth Appellate District, Division One

December 19, 2019, Opinion Filed

D075373

Opinion

 [*708] 

DATO, J.—Beau Gordon, a professional roofer, fell 35 feet through a “camouflaged hole” in a warehouse roof he was inspecting.2 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.3

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.

FACTUAL AND PROCEDURAL BACKGROUND

Gordon has worked on several hundred roofs in his professional career. West Pack, a prospective buyer of [**2]  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.4 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 the roof was dangerous. After climbing an interior ladder, Gordon opened the unlocked hatch and he and Mark went on the roof. They [*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 [**3]  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.

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43 Cal. App. 5th 705 *; 2019 Cal. App. LEXIS 1284 **; 256 Cal. Rptr. 3d 820; 2019 WL 6907080

BEAU GORDON, Plaintiff and Respondent, v. ARC MANUFACTURING, INC., et al., Defendants and Appellants; GOLDEN EAGLE INSURANCE CORPORATION, Intervener and Appellant.

Notice: CERTIFIED FOR PARTIAL PUBLICATION1

Prior History:  [**1] APPEAL from a judgment of the Superior Court of San Bernardino County, No. CIVRS 1302604, Donna G. Garza, Judge.

Disposition: Affirmed.

CORE TERMS

primary assumption of risk, roof, hire, landowner, contractor, inspection, roofer, cases, firefighters, duty of care, injuries, hazard, hirer, dog, firefighter's rule, concealed, warn, independent contractor, contractor's employee, third party, feet, plur, safe, hazardous condition, employees, benefits, italics, kennel, risks, hole

Civil Procedure, Appeals, Standards of Review, Torts, Negligence, Elements, Duty, Assumption of Risk, Elements & Nature, Primary Assumption of Risk, Secondary Assumption of Risk, Duty, Standards of Care, Reasonable Care, Vicarious Liability, Independent Contractors, Business & Corporate Law, Establishment, Manifestation by Principal