Antonio Padilla v. Pomona College et al
In the Court of Appeal of the State of California 2nd Appellate District
3 September 2008
B195724 (Los Angeles County Super. Ct. No. KC 046113)

Contractor versus Landowner’s liability for worker’s injury

This is an action for personal injury and premises liability filed by a worker against a defendant school, et al for worksite injury he sustained during the latter’s remodeling of its dormitory.

It appears from the facts that Pomona College employed the services of Gordon & Williams General Contractor, Inc. to remodel one of its dormitories. Gordon & Williams, in turn, subcontracted with TEG/LVI, Antonio Padilla’s employer – the complainant/plaintiff in this case, the demolition of basement water pipes, among other things.

One time, Padilla stood on a ladder to demolish an unpressurized cast-iron metal pipe when a portion of it came loose and fell, striking a pressurized PVC pipe and broke it. Water from the pipe gushed thru it, knocking Padilla off the ladder causing him to sustain serious physical injuries.

In his complaint, Padilla asserted two theories:

1. negligence


2. premises liability

He contended that Pomona College et al violated a common law and statutory duties of ensuring that there was no water pressure in the pipes in the area he was working.

The school and Gordon & Williams answered that:

• they had no duty to plaintiff because they did not retain control over the details of the activities that caused Padilla’s injuries and engaged in any affirmative act that contributed to his injuries


• Padilla’s claim was barred because his employer, TEG/LVI knew or should have known of the danger presented by the PVC pipe.

The trial court granted the summary judgment in favor of Pomona College et al. It concluded that the defendants had fully delegated the task of providing a safe work environment to TEG/LVI and they did not exercise any retained control in a manner that affirmatively contributed to Padilla’s injuries. The court found Regulation 1735(a) did not impose a duty on Pomona College, et al independent of the retained control theory of liability because Padilla did not establish that the regulation imposed a duty on defendants as opposed to his employer, or that it was in fact necessary to relocate or shut off the PVC pipe under the circumstances.

On appeal to the 2nd Appellate District of the Court of Appeal of the State of California, the Court agreed with the trial court – thereby disagreeing with Padilla’s contentions.

The Court held that Padilla cannot establish:

1. That defendants retained control over the PVC pipe and affirmatively contributed to the accident


2. Triable issues of fact under Regulation 1735(a)


3. That defendants failed to disclose a known hazardous condition of the property

Citing the case of Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette),which held that “at common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor’s negligence in performing the work”, the Court held that Privette addressed one exception to the common law rule, the “peculiar risk doctrine”, under which the hirer of an independent contractor to perform inherently dangerous work could be liable for injury to others resulting from the contractor’s negligent performance of the work.

Privette held that the peculiar risk doctrine did not apply to employees of the independent contractor injured on the job because they could recover worker’s compensation for their injuries. “In the case of on-the-job injury to an employee of an independent contractor, the worker’s compensation system of recovery regardless of fault achieves the identical purposes that underlie recovery under the doctrine of peculiar risk.”

As to the issue concerning Regulation 1735(a), the Court held that nothing in the same mandates that it imposes safety precautions that cannot be delegated from the landowner to the general contractor to subcontractors, as was done in this case. The Regulation requires that “utility companies shall be notified and all utility service shut off, capped, or otherwise controlled, at the building or curb line before starting demolition, unless it is necessary to use electricity or water lines during demolition.  If the use is necessary, the utility service shall be relocated or rearranged as necessary and protected from physical damage.” The language, however, nowhere indicates who must perform these acts and does not expressly place the obligation on the landowner.

As to the last issue, the Court ruled that the hazardous condition Padilla asserts is the pressurized PVC which is not exactly concealed. The law of the case states that defendants are not liable because the pressurization pipe was not concealed but fully disclosed to Padilla’s employer. TEG/LVI knew of the pipe and failed to make necessary precautions to protect it from harm during the demolition process.