NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KRIEGLER, J.

Plaintiff and appellant Andrew Garcia was seriously injured when he fell through a skylight while performing rooftop air conditioning repairs for his contractor/employer on a building owned by defendant and respondent ESS Prisa II, LLC (ESS). Garcia argues the trial court erroneously granted summary judgment in favor of ESS, because triable issues of fact exist as to whether (1) ESS had a nondelegable duty to install safety measures around the skylight; (2) ESS retained control over the rooftop because it would not allow contractors to make permanent changes to the roof or skylight without its permission; and (3) ESS's failure to protect against the hazard of falling through the skylight constituted the negligent exercise of retained control which affirmatively contributed to Garcia's injury.

We reject each of Garcia's claims, and affirm the judgment.

Allegations of the FAC and the Answer

The operative first amended complaint (FAC) alleged four causes of action—general negligence, premises liability, product liability, and loss of consortium.1 In the general negligence and premises liability causes of action, Garcia alleged he was injured when he fell through a skylight panel on the roof of ESS's premises. ESS negligently maintained control of the roof in an unsafe condition. Garcia was unaware of the unsafe condition. ESS had nondelegable common law and statutory duties to maintain the roof in a safe condition. Violation of the statutes constituted negligence per se. ESS could not delegate these duties to Air Tro, Inc., which was Garcia's employer. As to the premises liability cause of action, ESS did not inspect, guard, or protect the skylight in the manner required by its nondelegable common law and statutory duties.

The product liability cause of action alleged Garcia was injured as a result of the defective skylight. Rocio Garcia alleged a loss of consortium due to her husband's injuries.

ESS filed an answer consisting of a general denial and 12 affirmative defenses.

The Motion for Summary Judgment

ESS moved for summary judgment on the ground that ESS owed no duty to Garcia, because the responsibility for protecting against the open and obvious hazard of the skylight belonged to Air Tro, the contractor employing Garcia. Under Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 (Kinsman), the hirer of a subcontractor is not liable for injuries sustained by the subcontractor's employee resulting from an open and obvious hazard.

ESS's separate statement of undisputed facts established that Garcia was an employee of Air Tro, a commercial HVAC contractor hired by ESS to service and maintain its air conditioning units. On the day of the injury, Garcia met with ESS manager, Von K. Stroff, who told him there was a problem with one of the air conditioning units. Garcia used a ladder to access the roof, where there were several two feet by eight feet Plexiglas skylights that had been installed during construction in 1988. The skylights were open and obvious hazards which were easily visible to anyone walking on the roof, as demonstrated by photographs attached to Stroff's declaration. Garcia knew skylights were dangerous and he could fall through them if he did not keep away while working. Garcia fell through a skylight on the roof of ESS's property.

Because of the hazards posed by skylights, California imposes specific safety requirements for employees working within six feet of skylights. After Garcia's fall, Stroff observed a hole in one end of the skylight and broken pieces of skylight on the ground. ESS never instructed Garcia about how to do his job and did not supply him with tools or equipment. Stroff has no training or knowledge in air conditioning repair and did not tell Garcia how to do his job.

Opposition to Summary Judgment

Garcia argued there were three theories of liability sufficient to defeat summary judgment. First, his expert's declaration established the skylight was cracking before the accident and it could not withstand the weight of 400 pounds as required by a safety regulation. ESS was aware of the cracking of the skylight, which was an unsafe condition, but Garcia was unaware of the cracking and could not reasonably know about it. Second, under Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 (Hooker), ESS had an affirmative duty to remove the hazard of the skylight because it was aware of the Cal-OSHA regulation prohibiting work within six feet of the skylight, unless protected. ESS evidenced its control over these safety regulations by placing screens over the skylights after the accident. Third, ESS had a nondelegable duty under Evard v. Southern California Edison (2007) 153 Cal.App.4th 137 (Evard) to comply with the Cal-OSHA regulation.

Garcia disputed ESS's facts that the hazard of the skylight was open and obvious and that Garcia knew the skylights were dangerous, relying on the declaration of his expert, Bernd Givon. Givon declared that ESS had control of the roof and was responsible for the safety requirements.

Garcia also presented the following as undisputed facts. The air conditioning unit he was assigned to repair was located only two and one-half feet from the unprotected skylight. There was a gas line between the skylight and air conditioning unit that posed a trip hazard, the units were positioned less than six feet from unprotected skylights, and the skylights had no protective screens, guardrails, or weight bearing covers. A Cal-OSHA safety regulation required protection of employees working within six feet of a skylight. An unprotected skylight within six feet of an employee is a hazardous condition. It was foreseeable to ESS that workers would be within six feet of the skylight and that there was a tripping hazard from the gas lines. There were no warnings on the skylights, even though Brian Griewe, ESS's facilities services manager, knew they were easily breakable and could not withstand the weight of a person. The skylight was cracked before the accident, but the crack was not visible to the untrained eye. Skylights that are cracked should be replaced. The skylight next to the one Garcia fell through was cracked, had been caulked to prevent more cracking, and should have been replaced. ESS allowed the skylight to deteriorate and weaken. The skylight was unable to withstand weight requirements of title 8, section 3212, subdivision (e), of the California Code of Regulations (section 3212).

After the accident, ESS installed protective screens over the skylights. Only four of the skylights were within six feet from the HVAC units at the time of the accident.

Reply to the Opposition

ESS argued that Garcia attempted to place the burden of safety precautions on ESS rather than on Air Tro, which had the responsibility of complying with Cal-OSHA. Contrary to Garcia's argument, the skylight is the hazard, but the dangerous condition was not the responsibility of ESS. Garcia does not dispute that he was not told how to do his job and he was not provided with tools. ESS had no control over his work. Section 3212 does not impose a nondelegable duty on ESS. Under Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette), a hirer is not liable to a contractor's employees for failing to take precautions that should have been taken by the contractor. There is no duty to warn of a known safety hazard. ESS did not retain control over the worksite or contribute to Garcia's injuries.

Judgment

The trial court ruled that ESS was entitled to judgment as a matter of law under Kinsman, supra, 37 Cal.4th 659. There was no triable issue of material fact whether ESS knew or reasonably should have known of a concealed preexisting hazard and whether the contractor could not reasonably ascertain the hazardous condition. The skylight was large and readily visible. Garcia knew it was there and that it was hazardous. ESS did not have a nondelegable duty under Evard, supra, 153 Cal.App.4th 137, because the Cal-OSHA regulation contained an exception for short term work. A fall protection plan is sufficient to satisfy the regulation. In Evard, the pertinent regulation had no exception for short term work.

There was no evidence ESS maintained control over Garcia's work or that it failed to use reasonable care under Hooker, supra, 27 Cal.4th 198. There was no evidence that ESS's property manager directed or controlled the work or that he acted without reasonable care, citing Padilla v. Pomona College (2008) 166 Cal.App.4th 661 (Padilla).

The Garcias filed a timely appeal from the order granting summary judgment.

DISCUSSION

Standard of Review

We review an order granting summary judgment de novo. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) If the papers show no triable issue of material fact, the moving party is entitled to summary judgment. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) "If a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment. In such a case . . . the `court should grant' the motion `and avoid a . . . trial' rendered `useless' by nonsuit or directed verdict or similar device. [Citations.]" (Aguilar, supra, at p. 855.)

Nondelegable Duty After SeaBright Ins. Co. v. US Airways, Inc. (Lujan) (Aug. 22, 2011, S182508) __ Cal.4th __ [2011 D.A.R. 12750] (SeaBright)

Garcia argues that ESS had a nondelegable duty to take protective measures against injury from the skylight under section 3212.2 Because ESS failed to comply with this Cal-OSHA regulation, it breached its duty of care to furnish him a safe place to work. We reject the contention, as the duty to comply with the Cal-OSHA regulation was delegated by ESS to Air Tro.

After oral argument and submission of this case, the California Supreme Court decided SeaBright, which resolves the duty issues in this case against Garcia. In SeaBright, US Airways used a conveyor to move airport luggage. US Airways hired Aubry, a contractor, to repair and maintain the conveyor. An employee of Aubry was injured by the conveyor. The employee collected workers' compensation benefits from Aubry's insurer. The insurer sued US Airways to recover the paid benefits, and the employee intervened as a plaintiff alleging causes of action for negligence and premises liability. The trial court granted summary judgment in favor of US Airways, but the Court of Appeal reversed.

The California Supreme Court granted review and summarized the issue and its holding in SeaBright as follows: "Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work. (Privette[, supra,] 5 Cal.4th 689.) Here, we consider whether the Privette rule applies when the party that hired the contractor (the hirer) failed to comply with workplace safety requirements concerning the precise subject matter of the contract, and the injury is alleged to have occurred as a consequence of that failure. We hold that the Privette rule does apply in that circumstance." (SeaBright, supra, __ Cal.4th at p. ___ [2011 D.A.R. 12750].)

SeaBright rejected "the premise that the tort law duty, if any, that a hirer owes under Cal-OSHA and its regulations to the employees of an independent contractor is nondelegable. When in this case defendant US Airways hired independent contractor Aubry to maintain and repair the conveyor, US Airways presumptively delegated to Aubry any tort law duty of care the airline had under Cal-OSHA and its regulations to ensure workplace safety for the benefit of Aubry's employees. The delegation — which . . . is implied as an incident of an independent contractor's hiring — included a duty to identify the absence of the safety guards required by Cal-OSHA regulations and to take reasonable steps to address that hazard." (SeaBright, supra, __ Cal.4th at p. ___ [2011 D.A.R. 12750, 12753].)

SeaBright conclusively resolves the delegation of duty issue in this case. We assume, as did US Airways in SeaBright, that Cal-OSHA imposes a duty of care on ESS that extends to employees of Air Tro, including Garcia. The duty of care owed by ESS to Garcia under Cal-OSHA was delegated to Air Tro. No further discussion of the issue is required.

Dangerous Condition

Garcia argues summary judgment was improperly granted because ESS was subject to liability for a dangerous condition on its property. We hold the Garcia cannot prevail under the decision in Kinsman, supra, 37 Cal.4th at page 673, which addressed application of general principles that "apply when a landowner hires an independent contractor whose employee is injured by a hazardous condition on the premises."

The burden of ensuring an employee's safety is generally placed on the contractor and not on the hirer — "the hirer generally delegates to the contractor responsibility for supervising the job, including responsibility for looking after employee safety. When the hirer is also a landowner, part of that delegation includes taking proper precautions to protect against obvious hazards in the workplace. There may be situations, as alluded to immediately above, in which an obvious hazard, for which no warning is necessary, nonetheless gives rise to a duty on a landowner's part to remedy the hazard because knowledge of the hazard is inadequate to prevent injury. But that is not this case, since Kinsman acknowledges that reasonable safety precautions against the hazard of asbestos were readily available, such as wearing an inexpensive respirator. Thus, when there is a known safety hazard on a hirer's premises that can be addressed through reasonable safety precautions on the part of the independent contractor, a corollary of Privette and its progeny is that the hirer generally delegates the responsibility to take such precautions to the contractor, and is not liable to the contractor's employee if the contractor fails to do so. We see no persuasive reason why this principle should not apply when the safety hazard is caused by a preexisting condition on the property, rather than by the method by which the work is conducted." (Kinsman, supra, 37 Cal.4th at pp. 673-674.)

The undisputed facts in this case demonstrate that the hazard of an unprotected skylight was open and obvious. Photographs attached to the summary judgment papers, and to Garcia's opening brief, demonstrate the hazard of the skylight was not concealed as a matter of law. Air Tro, as the contractor employing Garcia, could have taken simple steps to avoid the danger of the unprotected skylight. ESS was entitled to summary judgment under Kinsman.

Retained Control of the Premises

We also reject Garcia's contention that ESS was potentially liable because it retained control of the premises. The record merely establishes that an ESS employee showed Garcia the rooftop location where the air conditioning repair was to be performed, and that ESS would not allow a contractor to modify the building structure. This is insufficient to establish a triable issue of material fact.

In Hooker, supra, 27 Cal.4th 198, the California Department of Transportation (CALTRANS) hired a contractor to construct an overpass. The contractor's employee was killed while operating a crane. It was alleged CALTRANS was liable for the death of the crane operator because it allowed traffic to use the overpass during construction, which lead to the crane operator's death. The question presented was whether an employee of a contractor may sue the hirer of a contractor for the tort of negligent exercise of retained control. (Id. at p. 201.)

"We conclude that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries. In this case, although plaintiff raised triable issues of material fact as to whether defendant retained control over safety conditions at the worksite, plaintiff failed to raise triable issues of material fact as to whether defendant actually exercised the retained control so as to affirmatively contribute to the death of plaintiff's husband. Therefore, the trial court properly granted summary judgment in favor of defendant, and the Court of Appeal erred in reversing that judgment." (Hooker, supra, 27 Cal.4th at p. 202.)

Here, even if Garcia is correct that ESS maintained control over the premises — a dubious point — there is no evidence ESS exercised the type of control of the worksite that affirmatively contributed to Garcia's injury. The record establishes, instead, that Garcia was not told how to perform his job, nor was he provided any equipment or tools by ESS for the task. Safety of the job was under the control of Air Tro, and summary judgment was properly granted in favor of ESS.

DISPOSITION

The judgment is affirmed. ESS is awarded costs on appeal.

TURNER, P. J. and ARMSTRONG, J., concurs.