Judge Kerry Bensinger, Case Number: 21STCV07597, Date: 2023-12-14 Tentative Ruling

MOVING PARTY: Defendants Sony Pictures Entertainment Inc., Sony Pictures Studios Inc., Sony Pictures Television Inc., and Lot, Inc.

On February 26, 2021, Plaintiff, Dawn Marie Fisher, initiated this action against Defendants, Adam F. Goldberg Productions, Inc.[1], Sony Pictures Entertainment, Inc (“SP Entertainment”), and Does 1-25, for injuries and damages arising from a trip and fall on the property of SP Entertainment. Plaintiff later amended the Complaint to name Sony Pictures Television, Inc. (“SP Television”) as Doe 1, Lot, Inc. as Doe 2, and Sony Pictures Studios, Inc. (“SP Studios”) as Doe 3. Plaintiff alleges that, on October 31, 2018, she was walking to work on the property of SP Entertainment when she tripped and fell on a protruding bolt on the walkway. Plaintiff asserts a single cause of action for premises liability against all Defendants.

On May 31, 2023, SP Entertainment, SP Television, SP Studios,[2] and Lot, Inc. (hereafter, “Defendants” or “Sony Entities and Lot, Inc.”) filed this motion for summary judgment.

On September 6, 2023, the Court heard argument from counsel and requested further briefing. Defendants submitted a supplemental opening brief, a second supplemental statement of undisputed material facts, and the declaration of Criag Scwartz. Plaintiff submitted a supplemental opposition and Defendants replied.

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.)

“[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).) If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)

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.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.] Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

Plaintiff submits one (1) objection to the Declaration of Derek Lemon. The objection is OVERRULED. (Sweetwater Union High School Dist. V. Gilbane Building Co. (2019) 6 Cal.5^th 931.)

Defendants object to portions of Plaintiff’s Separate Statement of Undisputed Material Facts (“PUMF”) but the objection to PUMF 9 is the only objection clearly stated. The objection is SUSTAINED.

The alleged injury occurred on the Sony Pictures studio complex, in Culver City, California (the “Studio Complex”). (Undisputed Material Fact (“UMF”)[3] 4.) Plaintiff was employed by SP Entertainment as a first aid nurse in the Medical Services department where she administered flu shots. (UMF 18, 31.) The Medical Services department is located in the Robert Young Building on Fish Alley, which is one of the many buildings at the Studio Complex. (UMF 19.) On October 31, 2018, Plaintiff was walking back to the Robert Young Building after getting a cup of coffee in the cafeteria when she tripped and fell on a protruding bolt next to the entrance of the Robert Young Building on Fish Alley and was injured. (UMF 17, 21, 24, 25.) The fall occurred right in front of the Robert Young Building. (UMF 26, 27.) The bolts were protruding because the SPS Maintenance Team received a work request on October 29, 2018 to temporarily remove a bicycle rack so that a location shoot could be filmed for a television show in Fish Alley. (UMF 21.) The SPS Maintenance Team dispatched Phillip Prewitt and Tim Gehrig, who were SP Entertainment employees, to remove the bicycle racks. (UMF 22; Supplemental Separate Statement of Undisputed Material Facts (SSUMF) 6, 7, 9-12.) SP Entertainment billed SP Television for the work performed by Prewitt and Gehrig. (2nd SSUMF 2.)[4]

Lot, Inc. is the legal owner of the real property on which the Studio Complex is situated. (UMF 5.) Lot, Inc. leases the real property to SP Studios. SP Studios owns the studios, buildings, grounds, and equipment at the Studio Complex.[5] (UMF 7.) SP Studios and SP Television are subsidiaries of SP Entertainment. (UMF 8, 9.) SP Entertainment and its employees manage, operate, and provide services to SP Studios, SP Television, and Lot, Inc. (UMF 11.) All of the employees who work at the Studio Complex are employees of SP Entertainment. (UMF 12.) SP Entertainment carries workers compensation insurance for its employees. (UMF 13.) SP Entertainment’s Construction – Facilities and Backlot Operations department is responsible for all permitted construction, tenant improvements, repairs and maintenance at the Studio Complex, and its SPS Maintenance Team performs any facilities maintenance and repair at the Studio Complex, including removal of the subject bicycle rack. (UMF 14.)

Defendant SP Entertainment moves for summary judgment based upon worker’s compensation exclusivity. This issue turns upon the application of the “goings and comings” rule, the premises line exception and the “field of risk” rule. The remaining defendants advance two separate arguments for summary judgment: (1) the Privette doctrine and (2) Plaintiff’s inability to establish each of the essential elements for a premises liability claim. The Court addresses each argument in turn:

Based on the undisputed facts, Plaintiff was an employee of SP Entertainment. There is no evidence showing SP Studios, SP Television, and Lot, Inc. were Plaintiff’s employers. Accordingly, the Court frames the issues as follows: (1) whether Plaintiff’s injury occurred within the course and scope of her employment with SP Entertainment, and relatedly, whether the going and coming rule or the premises line exception to that rule or the “field of risk” rule apply.

Labor Code section 3600 mandates compensation for injuries to employees against their employers that arise out of and in the course of the employment. (Lab. Code, § 3600.) The relevant conditions of the worker’s compensation statute are as follows: (1) the employer and employee are subject to the terms of the worker’s compensation law, (2) the worker is injured while performing services incident to the employment and is acting within the course of his or her employment, and (3) the injury is proximately caused by the employment. (Lab. Code., § 3600(a).) Where the conditions of compensation set forth in Section 3600 occur, the right to recover compensation is, except as specifically provided, the sole and exclusive remedy of the employee against the employer. (Lab. Code, § 3602, subd. (a).)

Here, it is undisputed SP Entertainment hired Plaintiff as a nurse. (UMF 18, 31.) It is further undisputed SP Entertainment carries workers compensation insurance for its employees. (UMF 13.) There is no dispute where the incident occurred: in front of the entrance of the Robert Young Building where Plaintiff worked. (UMF 17, 21, 24, 25.)

Defendants argue Plaintiff’s claims are barred by the workers’ compensation exclusivity rule because Plaintiff was an employee of SP Entertainment and working in the course and scope of her employment at the time of the incident.

Plaintiff argues the goings and comings rule applies because she was not working at the time of the incident. Generally, injuries sustained by employees when going to or returning from their regular place of work do not “arise out of and in course of employment.” (Pacific Indem. Co. v. Industrial Acc. Comm. (1946) 28 Cal.2d. 329 (Pacific Indem. Co.).) This is commonly referred to as the “going and coming” rule. “The ‘going and coming’ rule is sometimes ascribed to the theory that the employment relationship is ‘suspended’ from the time the employee leaves [the workplace] until he returns, or that in commuting he is not rendering service to his employer.” (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 465-66 [cleaned up].)

Here, Plaintiff submits evidence that she had not started work when the injury occurred. In her declaration, Plaintiff states she arrived at the Studio Complex before her shift was to begin and was walking toward the Robert Young building when she tripped and fell. (Declaration of Dawn Marie Fisher, ¶ 9.) As such, Plaintiff submits evidence to show she was not working in the course and scope of her employment at the time of the incident.

Defendants contend Plaintiff testified to having started working at the time of the incident. They point to Plaintiff’s deposition in her workers compensation proceedings wherein Plaintiff testified she “believe[d] it was about 7:00 a.m. [when the fall occurred] and I had already – I was working – scheduled to work at 8:00. I went and got a cup of coffee in the cafeteria. As I was walking back to my job site, which was the ... medical department ... something just made me stop. My right foot like hit something and I kind of stopped and I started to fall forward.” (Plaintiff’s Deposition, p. 179:12-19, Declaration of Stephen Thomas Davenport, Jr., Ex. D.)

Contrary to Defendants’ contention, the foregoing testimony does not conclusively establish Plaintiff was working at the time the incident occurred. Rather, the testimony tends to support the opposite conclusion -- Plaintiff was scheduled to start work at 8:00 a.m. At the very least, when ruling on a summary judgment motion, all reasonable inferences are drawn in favor of the opposing party. (Weiss, supra, 9 Cal.5th at p. 864.)

To avoid application of the goings and comings rule, Defendants invoke an exception to the rule – the premises line exception. The premises line exception applies to injuries sustained by an employee while going to or from her place of work on premises owned and controlled by her employer. Such injuries are generally deemed to have arisen out of and in the course of employment; commonly referred to as the “premises line” exception to the general rule. (Pacific Indem. Co., 28 Cal.2d. at p. 336; Greydanus v. Industrial Acc. Commission (1965) 63 Cal.2d 490; Peterson v. Moran (1952) 111 Cal.App.2d 766, 769 [“it is a well-established rule that the protective scope of the Workmen’s Compensation Act applies not only while a servant is actively at work on the employer’s premises, but also while he is properly traversing the premises in going to or coming from work so long as his act involves no unreasonable delay”].)(Emphasis added.) “Prior to entry[,] the going and coming rule ordinarily precludes recovery [of workers' compensation benefits]; after entry, injury is generally presumed compensable as arising in the course of employment.” (Jones v. Regents of University of California (Cal. Ct. App., Oct. 31, 2023, No. G061787) 2023 WL 8229170, at *3.) “The employer's premises include his parking lot as well as plant or office, and once the employee has reached the premises, employment is not interrupted by crossing public property while travelling from one part of the premises to another.” (Schultz v. Workers' Comp. Appeals Bd. (Schultz) (2015) 232 Cal.App.4th 1126, 1135.) (Citations omitted.) “[W]here an employee is required to access the employer's property by a specific means, an injury occurring during the course of entry into the property, even if on a public highway, is considered to have occurred in the course of employment under the premises line rule. The liability of an employer for injuries sustained by his employees on the employment premises is exceedingly broad. Extending his liability to the total premises is somewhat arbitrary but as a practical measure is well established.” (Id. at p. 1136.)

Defendant SP Entertainment cites Schultz in support of its argument that the premises line exception applies. Defendants are right to do so. The factual complication – that SP Entertainment does not own the property on which the sprawling Sony campus sits – is resolved favorably for SP Entertainment by Schultz.

Schultz was employed by JT3, a contractor located at Edwards Airforce Base. Schultz was injured in a traffic accident when he drove onto the base enroute to his assigned building, which was seven miles inside the base. Schultz crashed at mile one. Schultz applied for worker’s compensation. JT3 opposed the application and argued, in essence, that the accident occurred before Schultz started work and seven miles from the building where he was employed on the base. At the worker’s compensation hearing, it was noted that JT3 employed some 200 workers on the base and had multiple locations “spread all over the base.” (Schultz, supra, 232 Cal.App.4th at p. 1131.) The Worker’s Compensation Appeals Board denied Schultz’s benefits under the goings and comings rule.

The Court of Appeal reversed favoring application of the premises line exception. The Appellate Court noted several important facts. “Edwards is a secure location, and JT3 controlled Schultz's access to the base, which he could only enter with a security pass issued by JT3 and approved by the Air Force. Because JT3 controlled Schultz's access to Edwards, and Schultz worked throughout the base on assignments, Schultz was on the premises of his employer once he entered Edwards, and his injury therefore occurred during the course of that employment for purposes of the workers' compensation law.” (Id. at p. 1136.) The Court of Appeal emphasized that Schultz’s access to Edwards was controlled by JT3. “It was the security pass issued by JT3 as part of Schultz’s employment that provided means for Schultz’s entry to Edwards.” (Id. at p. 1138.) Schultz was required to traverse a secure area of Edwards to reach his building “and his employment necessarily contemplated that he use the roads on Edwards, as no other means of reaching his main work location are suggested by the record.” (Ibid.)

The evidence presented herein is striking similar, albeit not identical to Schultz. Defendants offer the Declaration of Josh Farrar, SP Entertainment’s Executive Director of Security and Plaintiff’s ID badge to establish that Plaintiff can only enter the Studio Complex by passing through a security gate where Plaintiff was required to furnish an SP Entertainment-issued ID badge. (Farrar Decl., ¶¶ 2-6; SSUMF 1-4.) The ID badge states that it “must be carried at all times while on SPE premises.” (Farrar Decl., Ex. A.) This shows that SP Entertainment controlled the premises, as well as the access to and movement on the Complex. And like Edwards Air Force Base, the Sony Complex is sprawling. (Farar Decl., ¶ 5, Ex. B.) Like SP Entertainment, JT3 did not own the land but it controlled access to it and required movement across it for employment. Plaintiff worked at a fixed location on the Studio Complex (the Robert Young Building) and tripped and fell while traversing the property. Plaintiff does not address Schultz or otherwise confront this argument.

Defendants establish the premises line exception applies. Because Plaintiff was on SP Entertainment’s premises for purposes of employment at the time of the injury, the exclusivity rule applies. SP Entertainment is entitled to summary judgment. Having so concluded, the Court does not address whether the field of risk rule applies.

The remaining Defendants collectively argue relief (in the form of vicarious liability) is barred by application of the Privette doctrine. After sifting through the arguments, the analysis is straight forward. The doctrine does not apply because Plaintiff was not injured during the bicycle rack removal job. “There is a strong presumption under California law that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety. (Citations omitted) This means that a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job.” (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 37-38 (emphasis added); see also Miller v. Roseville Lodge No. 1293 (2022) 83 Cal.App.5th 825, 834 [“the Privette presumption arises once the defendant establishes the requisite factual foundation—namely, that it hired an independent contractor to perform certain work, and the independent contractor's worker was injured in the course of that work” (emphasis added)].)

Plaintiff is more akin to a third party injured because of the negligence of the independent contractor. As the Court stated in Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 269 [cleaned up], “Where an injury befalls a hapless third party, the paramount concerns have been about ensuring victim compensation. Lest the victim be limited to suing an insolvent contractor, courts have extended various theories of direct and vicarious liability so the injured third party can recover from the hirer. As between an unrelated third party and a hirer, courts have preferred to let the loss lie with the party for whose benefit the contracted work was undertaken.” [6]

Moreover, Defendants, who bear the burden of proof on this issue, fail to present evidence to establish that SP Entertainment was engaged as an independent contractor. The only evidence presented is that SP Television was billed for SP Entertainment’s work. But the nature of the relationship is undefined. Indeed, Defendants have failed to meet their burden to establish an independent contractor relationship existed.

The elements for a premises liability claim are: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm.¿ (CACI No. 1000.) ¿

Turning to the second element, a defendant may be negligent in the use or maintenance of the property if (1) a condition on the property created an unreasonable risk of harm; (2) the defendant knew or, through the exercise of reasonable care, should have known about it; and (3) the defendant failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition. (CACI No. 1003.)

Defendants argue Plaintiff cannot establish the second and fourth elements because the Defendants did not act negligently.[7] Lot, Inc. concedes ownership but argues that because it was an “out of possession” owner, it had no part in the removal of the bicycle racks. Hence, it did not act negligently. SP Studios concedes it is a lessee but argues similarly that it is an “out of possession” lessee who had no role in the removal of the bicycle racks. Assuming this argument prevails, both Defendants argue they cannot be vicariously liable because of the Privette doctrine.

Plaintiff does not challenge the Defendants’ “out of possession” argument. The “out of possession” argument dovetails with Defendants’ argument they lacked actual or constructive knowledge of the dangerous condition. Defendants submitted evidence they were out of possession owners/lesees at the time of Plaintiff’s injury. Plaintiff does not challenge Defendants’ evidence or law. Plaintiff did not present any evidence challenging Defendants’ contention they were “out of possession.” Nor did Plaintiff present any evidence that these Defendants had actual or constructive knowledge of the repairs. Plaintiff did not respond at all to the authorities cited by Defendants.

Instead, Plaintiff pivots and challenges Defendants’ second argument – vicarious liability. Plaintiff argues Defendants are vicariously liable (which would satisfy the second and fourth elements) because they had a nondelegable duty to maintain the property in a safe condition. Defendants do not confront Plaintiff’s argument head-on. Indeed, they do not address Plaintiff’s case law at all. Rather, Defendants argue Plaintiff cannot rely upon vicarious liability to establish the second and fourth elements because Privette stands in the way, effectively blocking application of vicarious liability. But, as discussed above, Privette does not apply.

The non-delegable duty doctrine is another example of an exception to the common law rule that the hirer of an independent contractor was not liable to third parties for injuries caused by the contractor’s negligence. But “[u]nder this doctrine, a landlord cannot escape liability for failure to maintain property in a safe condition by delegating such duty to an independent contractor. Simply stated, ‘[t]he duty which a possessor of land owes to others to put and maintain it in reasonably safe condition is nondelegable. If an independent contractor, no matter how carefully selected, is employed to perform it, the possessor is answerable for harm caused by the negligent failure of his contractor to put or maintain the buildings and structures in reasonably safe condition[.]’” (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 725-727.) The Srithong Court went on to explain, “the nondelegable duty rule is a form of vicarious liability because it is not based on the personal fault of the landowner who hired the independent contractor. Rather, the party charged with a nondelegable duty is held liable for the negligence of his agent, whether his agent was an employee or an independent contractor. Regardless of “how carefully” the landowner selected the independent contractor, the landowner is answerable for harm caused by the negligent failure of his contractor.” (Id. [cleaned up].) “Thus, the nondelegable duty rule advances the same purposes as other forms of vicarious liability.” (Id.)

To invoke the doctrine, however, a plaintiff must demonstrate that the owner or possessor hired an independent contractor to do the work on the property. Where an owner or possessor hires an independent contractor to do work, the owner or possessor will be held vicariously liable and answerable for harm caused by the contractor's negligent failure to perform its work in a reasonably safe manner, irrespective of whether the contractor's negligence lies in incompetence, carelessness, inattention or delay. (Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256, 260; Srithong, supra, at p. 726; see Pappas v. Carson (1975) 50 Cal.App.3d 261, 268-269.)

Defendants successfully demonstrate that at least one of the essential elements is missing – hiring. Neither Lot, Inc. nor SP Studios hired SP Entertainment to perform the work. Plaintiff fails to rebut Defendants’ evidence on this point.

Plaintiff failed to respond to Defendant’s “out of possession” argument and failed to invoke the nondelegable duty rule to establish vicarious liability. As such, Defendants demonstrate successfully that Plaintiff cannot establish every element of her premises liability claim. Plaintiff’s fails to rebut this evidence and argument. Summary judgment is granted for Defendants Lot, Inc. and SP Studios.

SP Television argues summarily that Plaintiff cannot establish the first element of the premises liability test because it did not own, lease, occupy or control the property. Upon close examination, SP Television states that it did not “own or lease” the real property. (Defendants’ Supp. Brief at p. 10.). No doubt choosing its words carefully, SP Television admits by omission that it occupied or controlled the property where the work was performed. And as Plaintiff notes, the evidence presented suggests, if not establishes, that SP Television hired SP Entertainment to perform the work, if not verbally, then financially. Indeed, SP Television paid for the work, raising triable issues of material fact regarding both occupancy and control of the property. With respect to SP Television, Plaintiff successfully advances the non-delegable duty doctrine and demonstrates that it can establish each element of its claim for premises liability. SP Television fails to meet its initial burden. Summary judgment is denied.

The Motions for Summary Judgment as to Defendants SP Entertainment, Lot, Inc. and SP Studios are Granted.

[1] Dismissed from this action on September 21, 2022.

[2] Collectively referred to as “Sony Entities” in this ruling.

[3] All UMF references are to Defendants’ Separate Statement of Undisputed of Material Fact filed 5/3/2023.

[4] In their opening supplemental brief, Defendants state that SP Entertainment was asked to remove the bike rack by Remote Broadcasting, Inc., the producer of “The Goldbergs” television show. (Defendants’ Supp. Brief, p. 3.) Nonetheless, SP Television was billed for the work.

[5] It is unclear how Lot, Inc. can own the real property on which the Studio Complex is located, while at the same time SP Studios, which leases the real property from Lot, Inc. also “owns” the “grounds” at the Studio Complex. (Compare UMF 5 with UMF 7.)

[6] Moreover, it is not entirely clear that SP Entertainment acted as an independent contractor. Certain evidence supports that conclusion: SP Entertainment billed SP Television. But as stated in Defendants UMF 11, SP Entertainment and its employees manage, operate, and provide services to SP Studios, SP Television, and Lot, Inc. How and in what context those services are provided is unstated and undeveloped. Plaintiff does not challenge Defendants’ contention that it acted as an independent contractor, other than remarking at the last hearing that trying to sort out the various Sony Defendants roles is like trying to nail jelly to the wall. Plaintiff does no present or develop an argument based on the proposition that SP Entertainment did not perform the work as an independent contractor. Consequently, the Court proceeds with its analysis based upon the premise that SP Entertainment acted as an independent contractor when its employees removed the bicycle racks.

[7] Defendants do not challenge the third element.