Low, Ball & Lynch’s
WEEKLY LAW RESUME
August
4, 2005 Issue By: Mark
Hazelwood
Torts - Homeowner’s Association
Not Liable For Injuries Suffered by Security Guard
Tilley v. CZ Master Association
Court of Appeal, Fourth
District
(July 26, 2026)
Under the peculiar risk doctrine, a person who hires an independent
contractor to perform work that is inherently dangerous can be held responsible
for damages when the contractor’s negligent performance of the work causes
injury to others. In Privette v. Superior Court (1993) 5 Cal. 4th 689,
the California Supreme Court ruled that a landowner’s responsibility under the
peculiar risk doctrine did not extend to the employees of the independent
contractor. The Supreme Court reasoned that in the absence of direct
negligence by the landowner, causing the injury, then allowing the worker to
recover tort damages against the landowner, in addition to workers compensation
benefits, would be a windfall.
In this case, Donald Tilley worked as a security guard for Bonafide
Security Services. Bonafide contracted with CZ Master Association (CZ) to
provide security for Coto de Caza (Coto), a private gate-guarded community. In
1998, a disturbance broke out at a residence in Coto, where a party was
taking place, which involved under-age drinking. There were a number of
assaults at the party. Tilley was called to the residence and attempted to
place one of the perpetrators under arrest. In the process, Tilley was
assaulted and sustained serious injuries.
Tilley received worker’s compensation benefits from BonaFide as a result of
his injuries. Tilley then sued CZ, alleging causes of action for negligence and
premises liability. In essence, Tilley claimed that Coto had a long history of
out-of-control youth parties, which it failed to curtail. Further, Tilley
claimed that CZ required security personnel to respond to calls from such
parties, even though the guards were required to be unarmed. Tilley claimed
that CZ should have had law enforcement responding to the calls. At a minimum,
Tilley claimed that CZ should have established policies for how guards were to
act in such situations.
CZ moved for summary judgement, arguing that it owed Tilley no duty to
provide a safe premises. Further, CZ contended that Tilley could not establish
foreseeability of harm or causation. CZ also argued that the claim was barred
by the Privette decision and the primary assumption of the risk doctrine.
The trial court granted CZ’s summary judgement motion and Tilley appealed.
The Fourth Appellate District found that the undisputed evidence in the case
demonstrated that CZ neither required nor expected its unarmed security
personnel to confront potentially violent persons, or otherwise place
themselves in danger. Basically, the evidence showed that Bonafide’s guards
were merely to “observe and report” – not attempt to place people under
arrest. Tilley went beyond the scope of his duties. The Court also concluded
that CZ had no duty to curtail such parties, where the actual evidence revealed
only a scant history of problems at Coto.
Further, the Court of Appeal also concluded that the undisputed facts
demonstrated that Bonafide was in control of how its work was performed, and
that all decisions concerning the activities of Bonafide’s employees were
its responsibility. Bonafide trained, instructed and controlled its guards on a
day-to-day basis. Because CZ did not retain control or have authority on
how Tilley conducted himself on the job, the Court concluded that CZ could not
be held responsible to Tilley under the Privette doctrine.
The Court of Appeal also agreed with CZ’s contention that summary judgement
was appropriate based on the primary assumption of the risk doctrine. Following
the California Supreme Court’s decision in Neighbarger v. Irwin Industries,
Inc. (1994) 8 Cal 4th 532, the Court reiterated that in the employment
context, one who hires a person to confront a particular risk, owes no duty to
protect that person against that risk. Here, even if Tilley could show that CZ
required Tilley to confront violent young party-goers, this would have been the
very hazard he was hired to confront. Under Neighbarger, CZ would have
no duty to protect him from the known risk. The Court of Appeal, therefore,
affirmed summary judgement.
COMMENT
This case is helpful to property owners and provides a good example of how
to use the Privette Doctrine and Primary Assumption of the Risk as affirmative
defenses to a claim for damages brought by an employee of an independent
contractor.
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