Northern California Record

Thursday, February 20, 2020

Attorneys for Johnny Mathis ask for Supreme Court review in window cleaning injury suit

By John Breslin | Apr 3, 2018

General court 07

SAN FRANCISCO – Attorneys for singer Johnny Mathis have asked the California Supreme Court to review a lower court's decision that there is enough evidence for a jury to consider a contractor's injury negligence claim against the legendary singer.

Plaintiff Luis Gonzalez, a window cleaner, claims the singer is liable for serious injuries he suffered while working at Mathis' Los Angeles home. 

Mathis' attorneys with the Latham & Watkins law firm in Los Angeles believe the state's 2nd District Court of Appeal, Division Seven erred because the panel included an entirely new exception to two long-standing, but narrow, ones that allow a suit. As a general rule, a homeowner or other hirer is not liable for injuries sustained by a contractor or employee.

In a petition for review, the lawyers warn the issue is critically important as it affects "millions of transactions in this state annually." They want either the Supreme Court to transfer this case to the court of appeal with directions to modify its opinion or instruct it to vacate its decision.  

Gonzalez, who owns the window cleaning firm and has cleaned the skylight at Mathis' one-story Los Angeles home for two decades, first as an employee then company owner, claimed premises liability due to negligence.

He was hurt after falling 8.5 feet from the roof in the summer of 2012 as he helped clean a sky light, which protrudes from a flat roof. Gonzalez said that “loose rocks, pebbles and sand on the roof of the property” constituted a “dangerous condition," the petition states.

He sued two years later but a trial court granted summary judgment in favor of the 82-year-old singer, ruling that he has no duty of care as a hire in these particular circumstances.

The 2nd Appellate District ruled the case can be sent back because "there are triable issues of fact whether Mathis can be held liable for Gonzalez’s injuries." 

"The expansion done by the court does not make any sense," said John Doherty, president of the Civil Justice Association of California (CJAC), told the Northern California Record. "The circumstances in this case do not fit either of the established exceptions. This will be extrapolated out to every homeowner out there." 

The CJAC is a legal reform group that plans to file a brief in support of Mathis.

The case turns on the general rule that a homeowner or other hirer cannot, in fact, be sued for work carried out by a contractor, or employee, except under two exceptions: whether the hirer was directly managing the job or whether he or she failed to warn of a concealed hazard.

Mathis' attorneys argue neither exception applied because Gonzalez had specifically admitted that he was not told how to clean the skylight, and he was aware of the dangerous conditions on the roof.

Lawyers for Mathis did not respond immediately to calls or emails from Northern California Record for comment on the background to the case. The petition for a Supreme Court reviews lays out clearly the reasons and what they believe is the long-standing laws relating to homeowner liability.

It is claimed in the petition that the entirely new exception in the Court of Appeal’s ruling "exposes unwitting homeowners to catastrophic liability in countless cases involving inherent hazards—even when the homeowner has no reason to believe the contractor is in danger."

A series of decisions by the Supreme Court over the last 25 years limits the circumstances in which a contractor or employee can sue. This began with the 1993 Privette case, which "has been cited in almost 14,000 court filings to date, and has been the subject of well over a dozen decisions by the Supreme Court and over 100 published Court of Appeal opinions," the petition states.

"The Privette Doctrine generally holds property owners and general contractors are not liable for injuries to employees of subcontractors absent an affirmative act or omission causing injury," defense attorney Kathryn Besch of Tyson Mendes, wrote in a recent blog piece.

"What does this mean to landowners looking to build or remodel their home?" Besch asked. "Based on the Privette Doctrine, the best way to avoid potential liability for any injuries to employees that may occur on the premises during the course of construction or a remodel is to hire a general contractor and give the contractor control over how the work is performed."

There are two exceptions to the bar on suing: "where the hirer retains control over the contractor’s work and affirmatively contributes to the injury ... (and) where the hirer fails to warn the contractor of a concealed hazard," the petition states.

The appeals court created a previously unrecognized third exception to Privette’s general rule, according to the Mathis filing, citing the court's ruling that a hirer is liable in tort “when he or she exposes a contractor (or its employees) to a known hazard that cannot be remedied through reasonable safety precautions.”

A second reason for a review, the petition states, is to "resolve the conflict among California appellate courts resulting from this decision."

"Indeed, only weeks before this court’s decision, a different division of the same Court of Appeal decided a case involving nearly identical facts—an independent contractor’s employee who fell off a building while washing windows—but reached the opposite result," the petition states.

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Organizations in this Story

Civil Justice Association of CaliforniaCalifornia Supreme CourtCalifornia 2nd District Court of Appeal