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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