This case was last updated from Los Angeles County Superior Courts on 07/05/2019 at 15:56:05 (UTC).

RODNEY HEIKKILA VS RAY S JONES CONSTRUCTION CO INC

Case Summary

On 07/11/2017 RODNEY HEIKKILA filed a Personal Injury - Other Personal Injury lawsuit against RAY S JONES CONSTRUCTION CO INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE and AMY D. HOGUE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7987

  • Filing Date:

    07/11/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. SEIGLE

AMY D. HOGUE

 

Party Details

Plaintiff and Petitioner

HEIKKILA RODNEY

Defendants and Respondents

RAY S. JONES CONSTRUCTION CO. INC.

DOES 1 TO 50

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MITCHELL TIMOTHY P. ESQ.

MITCHELL TIMOTHY PAUL ESQ.

SHAKRAMY IAN

Defendant Attorneys

WILKINSON CLAY RYAN

ROSS JONATHAN ARTHUR

 

Court Documents

Minute Order

7/1/2019: Minute Order

Minute Order

7/1/2019: Minute Order

Ex Parte Application

7/1/2019: Ex Parte Application

Notice

7/2/2019: Notice

Proof of Service by Substituted Service

11/15/2018: Proof of Service by Substituted Service

Answer

12/10/2018: Answer

Notice

1/7/2019: Notice

Notice of Ruling

4/26/2019: Notice of Ruling

Minute Order

4/26/2019: Minute Order

Ex Parte Application

4/26/2019: Ex Parte Application

APPLICATION FOR PUBLICATION

1/22/2018: APPLICATION FOR PUBLICATION

NOTICE OF REJECTION APPLICATION AND ORDER FOR PUBLICATION

4/2/2018: NOTICE OF REJECTION APPLICATION AND ORDER FOR PUBLICATION

CoverSheet

7/11/2017: CoverSheet

Summons

7/11/2017: Summons

Complaint

7/11/2017: Complaint

3 More Documents Available

 

Docket Entries

  • 07/02/2019
  • Notice (Notice of Ruling and Continuance of Ex Parte Application to Continue Trial and All Corresponding Discovery); Filed by Ray S. Jones Construction Co. Inc. (Defendant)

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  • 07/01/2019
  • at 09:56 AM in Department 4B, Laura A. Seigle, Presiding; Nunc Pro Tunc Order

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  • 07/01/2019
  • at 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Hearing on Ex Parte Application (to Continue Trial and Related Deadlines) - Held

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  • 07/01/2019
  • Minute Order ( (Nunc Pro Tunc Order)); Filed by Clerk

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  • 07/01/2019
  • Ex Parte Application (to Continue Trial and Related Deadlines); Filed by Ray S. Jones Construction Co. Inc. (Defendant)

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  • 07/01/2019
  • Minute Order ( (Defendant Ray S. Jones Construction Company Inc.'s Ex Parte A...)); Filed by Clerk

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  • 07/01/2019
  • Opposition (to Ex Parte); Filed by Rodney Heikkila (Plaintiff)

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  • 06/28/2019
  • at 10:00 AM in Department 4B, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Continued - Party's Motion

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  • 04/26/2019
  • at 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Hearing on Ex Parte Application (RE brief trial continuance) - Held - Motion Granted

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  • 04/26/2019
  • Notice of Ruling; Filed by Ray S. Jones Construction Co. Inc. (Defendant)

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4 More Docket Entries
  • 12/26/2018
  • at 10:00 AM in Department 7, Amy D. Hogue, Presiding; Final Status Conference - Not Held - Vacated by Court

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  • 12/20/2018
  • [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Ray S. Jones Construction Co. Inc. (Defendant)

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  • 12/10/2018
  • Answer; Filed by Ray S. Jones Construction Co. Inc. (Defendant)

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  • 11/15/2018
  • Proof of Service of Summons; Filed by Rodney Heikkila (Plaintiff)

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  • 04/02/2018
  • NOTICE OF REJECTION APPLICATION AND ORDER FOR PUBLICATION

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  • 01/22/2018
  • Application for Publication; Filed by Plaintiff/Petitioner

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  • 01/22/2018
  • APPLICATION FOR PUBLICATION

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  • 07/11/2017
  • Complaint; Filed by Rodney Heikkila (Plaintiff)

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  • 07/11/2017
  • Complaint

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  • 07/11/2017
  • Summons; Filed by Rodney Heikkila (Plaintiff)

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Tentative Rulings

Case Number: BC667987    Hearing Date: December 26, 2019    Dept: 4B

[TENTATIVE] ORDER RE: MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

In early 2017, Ray S. Jones Construction Co., Inc. (“RJC”) was hired to remodel a restaurant. RJC hired Darrel Criswell dba Foothill Custom Water System (“Criswell”) to perform plumbing work during the remodel. Plaintiff Rodney Heikkila (“Plaintiff”) worked for Criswell on the remodel. On July 11, 2017, Plaintiff filed this action against RJC for general negligence and premises liability relating to a June 16, 2017 accident in which a concrete slab next to a trench broke and injured Plaintiff. On August 6, 2019, RJC filed a cross-complaint against Criswell. On September 17, 2019, Criswell filed a cross-complaint against RJC. Criswell moves for a determination of good faith settlement with Plaintiff in the amount of $5,000.

The Court must approve any settlement entered into by less than all joint tortfeasors or co-obligors. (Code Civ. Proc., § 877.6.) This requirement furthers two sometimes-competing policies: (1) the equitable sharing of costs among the parties at fault, and (2) the encouragement of settlements. (Erreca’s v. Superior Court (1993) 19 Cal.App.4th 1475, 1487.) To demonstrate a lack of good faith, the non-settling party must show that the settlement is so far “out of the ballpark” as to be inconsistent with the equitable objectives of section 877.6. (Nutrition Now, Inc. v. Superior Court (2003) 105 Cal.App.4th 209, 213.) The Court will typically consider: (1) the plaintiff’s (roughly) approximated total recovery; (2) the settlor’s share of liability; (3) the size of the settlement at issue; (4) the distribution of settlement proceeds among plaintiffs; (5) the usual discount value when plaintiffs settle before trial; the settlor’s financial condition and insurance policy limits; and (6) whether there is evidence of “collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.” (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.) These factors are evaluated accordingly to the information available at the time of settlement. (Ibid.)

“A determination as to the good faith of a settlement, within the meaning of section 877.6, necessarily requires the trial court to examine and weigh a number of relevant factors, one of the most important of which is the settling party’s proportionate liability. In making such examination, the court must look at the state of the evidence as it exists at the time the motion for a good faith determination is heard. [Citation.] If . . . there is no substantial evidence to support a critical assumption as to the nature and extent of a settling defendant’s liability, then a determination of good faith based upon such assumption is an abuse of discretion.” (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 871.)

“If a cross-defendant without legal liability to the plaintiff settles with the plaintiff in an amount within the reasonable range of what the cross-defendant’s liability would be, the interests of the nonsettling cross-complainant are protected, and both the policies of encouraging settlements and equitable financial sharing are served. However, when such a cross-defendant enters into a disproportionately low settlement with the plaintiff solely to obtain immunity from the cross-complaint, the inference that the settlement was not made in good faith is difficult to avoid.” (Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1354.)

Criswell states Plaintiff’s medical bills are at least $61,000, Plaintiff also claims loss of earnings, and so a verdict on economic damages could be $100,000 or more. RJC contends Plaintiff’s medical expenses higher – more than $76,000 – and will increase given likely future medical treatment and time off work. Neither party submits evidence of the current amount of medical expenses or lost earnings, but both parties seem to agree that Plaintiff’s economic damages will likely exceed $100,000. The $5,000 is obviously a very small percent of the potential liability.

Criswell contends that a settlement offer of $5,000 is within the ballpark even if damage are over $100,000 because Plaintiff never sued him and he has no liability. Criswell argues RJC dug the trench, piled the dirt from the trench along the right side of the building, and left a slab of concrete running along the left side of the trench. Criswell states he was uncomfortable but did not see anything unsafe. He told Plaintiff that he did not like how that looks “right there” and to “be careful around that.” He yelled at Plaintiff to “stay off the concrete” after Plaintiff knocked a the concrete rock onto him and again after noticing that someone had tunneled some of the dirt from under. Criswell contends, through an expert declaration, that he had no duties regarding Plaintiff’s safety in connection with the concrete, and that Criswell ceded all control of the trench to RJC.

RJC contends Criswell dug parts of the trench (but does not submit evidence of this), knew or should have recognized the hazard, and failed to take steps to protect Plaintiff from hazard. RJC argues that as the plumbing company that hired Plaintiff, Criswell retained control of Plaintiff’s safety of the job site. RJC argues that discovery may reveal additional evidence of Criswell’s liability. However, the Court’s evaluation is based on evidence available at the time of the settlement. RJC contends through its expert’s declaration that Criswell was responsible for the safety of his employee, Plaintiff.

At his deposition, Criswell testified RJC dug the trench and shored it up. (Criswell Depo., pp. 12-13.) He was “uncomfortable with that dirt” piled up, but nothing at the job site looked unsafe to him. (Id., pp. 14, 16.) He told Plaintiff to stay off the concrete several times. (Id., pp. 16, 18.) Criswell testified did not realize the dirt had been tunneled out from under the concrete, but he also testified that he could see the tunnel and so told Plaintiff to stay off the concrete. (Id., p. 21-23.) He testified that Plaintiff “was safe until he got on that concrete. That was not safe,” and it was not common for workers to stand on cut concrete if someone had dug under it. (Id., pp. 32, 33.) Criswell acknowledge that someone probably should have shored up the concrete on both sides. (Id., pp. 33, 72.)

Neither party presents legal authority regarding the scope of Criswell’s responsibility to Plaintiff, and Plaintiff’s relationship to Criswell is unclear. Criswell avoids stating whether Plaintiff was his employee or his subcontractor. RJC calls Plaintiff Criswell’s subcontractor, but RJC’s expert refers to Plaintiff as Criswell’s employee. In his opposition to RJC’s summary judgment motion, Plaintiff stated he was employed by Criswell.

Generally, “[b]y hiring an independent contractor, the hirer implicitly delegates to the contractor any tort duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594.) Exceptions to this rule exist, such as if the contractor’s exercise of retained control affirmatively contributed to the employee’s injuries. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202.) In denying RJC’s summary judgment motion, the Court held RJC’s conduct “may have constituted a negligent exercise of its retrained control in a manner that affirmatively contributed to Plaintiff’s injury” and RJC “may have discharged [the responsibility for the safety of the workers] in a negligent manner.” But the Court did not hold that because the evidence showed RJC may have retained control and acted negligent, Criswell was not at all liable. Criswell did not show that he had no duty to ensure the safety of the specific workplace – the area of the trench and concrete where Plaintiff was working.

The Court cannot conclude Criswell had no duty to Plaintiff, did not breach any duty, and has no potential of liability. In hiring Criswell as a contractor to work on plumbing in the trench and near the concrete, RJC may have delegated to Criswell at least some of the control of the specific workplace and responsibility for safety in the specific workplace. Criswell’s deposition testimony could allow a jury to conclude he was aware of the potential danger of the concrete that was not shored up and should have taken some steps to ensure the safety of the trench and concrete before Plaintiff started working in the area. Thus, Criswell’s potential share of the liability is greater than zero and could be more than 5%, even if both RJC and Plaintiff are determined to share in the fault.

Criswell states he does not have insurance and cannot pay to litigate this case, but he did not submit evidence of his financial condition.

While there is no evidence of outright collusion, the court in Mattco Forge recognized that when a cross-defendant without legal liability to the plaintiff “enters into a disproportionately low settlement with the plaintiff solely to obtain immunity from the cross-complaint, the inference that the settlement was not made in good faith is difficult to avoid.” (Mattco Forge, supra, 38 Cal.App.4th at p. 1354.) Because Plaintiff did not sue Criswell (and it is likely too late for Plaintiff to sue him), Criswell has no legal liability to Plaintiff. The very small settlement amount raises the inference that the purpose of the settlement is to protect Criswell from potential liability as a cross-defendant.

Having considered the various applicable factors, the Court concludes that the $5,000 settlement is so far out of the ballpark as to be inconsistent with the equitable objectives of section 877.6. Accordingly, Criswell’s Motion is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative.

Case Number: BC667987    Hearing Date: December 02, 2019    Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT RAY S. JONES CONSTRUCTION CO., INC.’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Defendant Ray S. Jones Construction Co., Inc. (“RJC”) was hired to remodel a restaurant, including connecting pipes to a city sewer system. (UMF No. 1.) RJC cut up part of the restaurant’s concrete flooring and made two trenches for the plumbing, a wide one and a narrow one. (UMF Nos. 2, 3.) RJC hired a sub-contractor Foothill Custom Water Systems (“Foothill”) to do the plumbing. (UMF No. 1.) Plaintiff Rodney Heikkila (“Plaintiff”) worked as a plumber for Foothill on the project. (UMF Nos. 1, 10.) On June 16, 2017, Plaintiff jumped from one side of the narrow trench to the other, and landed on a concrete slab. The slab broke, causing Plaintiff to fall into the trench, and the concrete slab fell on top of him. (UMF No. 16.)

On July 11, 2017, Plaintiff filed this action against RJC for general negligence and premises liability. RJC moves for summary judgment on the grounds that: (1) the Privette-Toland doctrine applies, (2) RJC did not breach any duty as the alleged dangerous condition did not pose a foreseeable risk of harm, (3) RJC did not cause Plaintiff’s injuries; (4) the alleged dangerous condition was open and obvious; (5) the primary assumption of risk doctrine applies.

II. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

III. DISCUSSION

Privette Doctrine

RJC argues the Privette doctrine is a complete defense to Plaintiff’s claims for negligence and premises liability. “Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work.”  (SeaBright This rule was enunciated in Privette Thus, “[t]he court concluded that the policy reasons for allowing a third party to recover against the hirer of a negligent independent contractor under the doctrine of peculiar risk were simply not present when the injured plaintiff was an employee covered by workers’ compensation.” (Johnson v. Raytheon Company, Inc. (2019) 33 Cal.App.5th 617, 628.)  

The California Supreme Court has found exceptions to Privette’s general rule.  One exception exists when a hirer retained control over safety conditions, and the exercise of retained control affirmatively contributed to the employee’s injuries. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202.) “The imposition of tort liability turns on whether the hirer exercised that retained control in a manner that affirmatively contributed to the injury.” (Tverberg v. Fillner Construction (2012) 202 Cal.App.4th 1439, 1446.) “[P]assively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution.” (Ibid.) “While the passive permitting of an unsafe condition to occur is not an affirmative contribution, the act of directing that it occur is active participation.” (Id. at p. 1448.) Thus, where a general contractor directed that holes be created and required the employee of a subcontractor to work near those holes, the general contractor’s “conduct may have constituted a negligent exercise of its retained control in a manner that could have made an affirmative contribution to [the plaintiff’s] injury.” (Ibid.) Likewise, where the general contractor provided some worker protection near the holes, the evidence allowed an inference that the general contractor “affirmatively assumed the responsibility for the safety of the workers near the . . . holes, and discharged that responsibility in a negligent manner, resulting in injury.” (Ibid.)

RJC argues the Privette doctrine applies because Foothill was an independent contractor and was responsible for supplying its own equipment, RJC gave no advice or assistance regarding how Foothill did its plumbing work, and RJC did not manage Foothill’s or Plaintiff’s work. Plaintiff argues an exception to the Privette doctrine applies because RJC affirmatively contributed Plaintiff’s injuries and retained control over the safety measures at the work site. Plaintiff points out that RJC had responsibility and control over digging the trench and creating the void under the concrete slab next to the trench. (Heikkila Decl., ¶¶ 6, 7.) RJC did not shore up the concrete and allowed workers to to walk next to the trench on an un-reinforced area to access the rear area. (Heikkila Decl., 11.) Plaintiff argues RJC retained control over safety at the site by posting some warnings, which Plaintiff contends were inadequate. (Heikkila Decl., ¶¶ 9, 12.)

RJC’s conduct in creating the void under the slab, which was not necessary for Plaintiff’s work, and then failing to shore up the slab may have constituted a negligent exercise of its retained control in a manner that affirmatively contributed to Plaintiff’s injury. Also, by providing some warning signs, RJC affirmatively assumed the responsibility for the safety of the workers near the concrete slab and may have discharged that responsibility in a negligent manner, resulting in Plaintiff’s injury. Accordingly, RJC’s motion for summary judgment on the grounds that the Privette doctrine applies is DENIED.

Duty

RJC argues it did not create the dangerous condition and so had no duty to warn Plaintiff about the concrete slab. However, RJC’s own evidence establishes that it cut up the concrete flooring and dug the trench. (UMF No. 2.) Plaintiff submitted evidence that one side of the trench had no shoring and had a void under the slab. (Heikkila Decl., 8.) Thus, there is evidence from which a jury could conclude that RJC created the dangerous condition.

Open and Obvious

RJC argues that trench and the crack in the concrete were so open and obvious that RJC had no duty to warn Plaintiff of the risk of the concrete breaking off and falling on him. RJC also argues it had no duty to warn Plaintiff because Plaintiff knew about the crack in the slab, and he knew to be careful around the slab after someone said it had a crack and warned him to be careful around it.

“Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.) However, this is not always the case. (Ibid.) “[T]he obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it.” (Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184.) The obviousness of a danger “may obviate the duty to warn of its existence,” but if “if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g, when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability . . .” (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122.)

Plaintiff submitted evidence that workers were walking over or by the area next to the trench to access the rear worksite, no signs warned against walking near the trench or slab, and nothing restricted access. Therefore, Plaintiff did not see anything to make him believe the concrete would collapse. (Heikkila Decl., ¶¶ 11-13.) This evidence could allow jury to conclude the workers necessarily had to encounter the concrete slab and trench to do their work and that RJC should had done more to warn against accessing the area. Also, while the existence of the trench and the slab were obvious, the dangerous nature of the crack in the slab may not have been obvious. Plaintiff provided evidence explaining why he did not believe the crack made the slab dangerous. Accordingly, a jury could conclude the dangerous condition was not open and obvious, or that even if it was, RJC had a duty to remedy the danger by, for example, shoring up the void under the contract or restricting access over or near the slab.

Primary Assumption of Risk

RJC argues Plaintiff assumed the risk of the slab breaking when he jumped on it. “[W]here, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury—the doctrine [of primary assumption of the risk] continues to operate as a complete bar to the plaintiff’s recovery.” (Knight v. Jewell (1992) 3 Cal.4th 296, 314-315.) “[T]he question of whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” (Id. at p. 309.) “[W]here the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty,” secondary assumption of risk applies to consider the relative responsibility of the parties under a comparative fault scheme. (Id. at p. 315.) The doctrine of primary assumption of risk applies “where the risk cannot be eliminated without altering the fundamental nature of the activity.” (Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658.) “A defendant seeking summary judgment on the basis of primary assumption of the risk must establish ‘that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.’” (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1395.)

RJC has not met its initial burden of showing an inherent risk that could not be eliminated without altering the fundamental nature of the activity participated in. Evidence presented suggests RJC could have eliminated the risk of the slab breaking by shoring up the void. Nor did RJC establish it had no legal duty to Plaintiff to prevent Plaintiff’s injury. At most, Plaintiff’s conduct in jumping on the slab goes to his comparative fault.

Causation

RJC also argues that Plaintiff cannot produce evidence that RJC’s conduct was a substantial factor in causing Plaintiff’s injuries because RJC posted warnings at the construction site, yet Plaintiff still jumped over the trench to land on a knowingly compromised piece of concrete. As already discussed, Plaintiff presented evidence RJC was allowing workers to walk over or near the slab to access the rear of the work site, which made Plaintiff believe the area was safe enough, and the slab appeared to be intact and solid. (Heikkila Decl., ¶¶ 11, 13, 14.). The evidence could allow a jury to conclude RJC created the trench and void under the slab, and that its failure to restrict access to the area or post more explicit warnings signs were substantial factors in causing the accident.

IV. CONCLUSION

In light of the foregoing, the Motion for summary judgment is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative.