By Richard A. Cohn
Although Liability for Hirers of negligent independent contractors in construction site injury cases has been limited in dramatic ways in the last decade, the road to liability is not nearly so limited as the defense lawyers who handle these cases try to argue. On the contrary, there are still numerous ways to prove liability against the hirers of independent contractors in many (if not most) circumstances. While “All Roads” may no longer lead to liability, many still do. This article seeks to map out some of the uncharted detours that may exist to get around the Privette road block.
In Privette v. Superior Court (1993) 5 Cal.4th 689, the plaintiff employee of a roofing contractor was injured while hand-carrying buckets of hot tar up to a roof top. The owner of the building (who hired Mr. Privette’s employer) was not present during the job, and had no participation and exercised no control over the roofing process. Plaintiff sued the owner/hirer on a single theory of liability: that under the doctrine of peculiar risk, because of the risk inherent in working with hot tar, the owner should be liable for the Plaintiff’s injury. The plaintiff’s argument logically followed longstanding, well-established California law and Restatement 2d of Torts, Section 416, which articulates an exception to the traditional rule of non-liability for hirer’s of independent contractors to third parties for the negligent actions of their independent contractors. Unfortunately, the Privette court held that the justifications for the peculiar risk doctrine did not apply to situations where a contractor’s employee is injured and worker’s compensation benefits were available. The court theorized that the purpose of “peculiar risk”? liability as against hirers of independent contractors was to ensure that injured third party victims would not go uncompensated in the event that the negligent contractor was insolvent. Thus, where workers compensation is available, the concern that the victim will go uncompensated is removed, and thus there is no further need for peculiar risk liability under such circumstances. (Analysis/criticism of the merits of this “logic” is beyond the scope of this article.) Notably, however, the Privette opinion was never intended to preclude liability where the plaintiff’s injury was caused by the negligence of a party other than his own employer.
Subsequently, several other cases have been reported which have bearing on how far the Privette doctrine might ultimately extend. For example, in Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, the court extended the Privette logic to reject a hirer’s liability for an independent contractor’s negligence under Restatement 2d of Torts Section 413, which provides that a person who hires an independent contractor to do inherently dangerous work can be liable when he fails to provide in the contract or in some other manner that “special precautions” be taken to assure safety of others due to the peculiar risk harm inherent in the work. Likewise, in Camargo v. Tjaardn Dairy (2001) 25 Cal.4TH 1235, the court rejected a theory of liability based on Restatement 2d Torts Section 411 for negligent hiring of an incompetent independent contractor to perform work that involved an inherent risk of physical harm. Notably, the Camargo court considered and rejected the Plaintiff’s argument that the case was distinguishable from Privette in that the defendant was being sued for its own negligence in selecting an incompetent contractor (as opposed to a pure vicarious/derivative liability theory.)
Subsequently, in Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, the court considered the applicability of the Restatement 2d of Torts, Section 414 which allows for liability for the hirer of an independent contractor where the hirer retains control of any part of the work and fails to exercise that control with reasonable care. The court, in a truly fact-specific opinion holding against liability, articulated a nonetheless fairly broad rule that in essence states that the hirer will be liable where he retains control and exercises the control in an affirmative manner so as to contribute to the injury of the contractor’s employee. And, in its infamous “footnote 3,” the Hooker court opened the door yet wider: “Such affirmative contribution need not always be in the form of actively directing a contractor …There will be times when the hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer’s negligent failure to do so should result in liability …” Hooker, supra, at footnote 3. In addition, at the same time the court also decided a companion case McKown v. Walmart (2002) 27 Cal.4th 219, holding liability against the hirer of an independent contractor where the hirer furnished (and requested that plaintiff’s employer put to use) a defective forklift which injured the employee.
Thereafter, in Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, the court held that where a hirer retained sole authority to close a road, and the independent contractor’s employee was injured on a road construction site due to the failure to close the road, then the hirer could be liable. Later analysis of Ray in the case of Kinsman v. Unocal Corp. (2005) 35 Cal.4th 659 notes that in Ray the hiring defendant could be liable because the hirer’s delegation of workplace safety responsibilities to the independent contractor was limited and did not authorize the contractor to take the one safety measure that might have saved plaintiff’s life. This constituted retained control on the part of the hirer and the omission to exercise it, which led to plaintiff’s injury. (This holding was therefore seemingly consistent with Hooker, supra at footnote 3.) Kinsman, by the way, also held that a landowner with knowledge of a concealed danger on its premises (asbestos) could be liable to the employee of a hired independent contractor if the employee and contractor were not (and could not reasonably have become) aware of the danger, and the landowner failed to warn of same.
Further extending the Hooker holding, the court in Brown v. Turner Construction (2005) 137 Cal.App.4th 1334, held that the Defendant landowner and general contractor could be liable for allegedly removing safety devices (fall prevention) leading to plaintiff’s injury. The Browne court, citing Hooker found that the furnishing and withdrawal of safety equipment could be found to constitute negligent performance of a voluntary undertaking, and that this exercise of retained control could have affirmatively contributed to the employee’s injuries. Brown, supra, at 1342. Importantly, the Brown court rejected the defense argument that although they removed the safety devices, they did not order/require the Plaintiff to then work without the safety devices present. The court held that the defendant’s conduct could still be found sufficient to constitute affirmative action that contributed to the injury, despite that defendants did not order the plaintiff to work under the circumstances. Further, in Brown at footnote 5, the court seemingly implies that liability could be predicated when a defendant either promises to undertake an affirmative act and fails or actually undertakes to perform the affirmative act and does so negligently. However, the court then states: “We need not consider whether liability could be predicated on a purely contractual undertaking between an injured plaintiff’s employer and the landowner or other person hiring that employer.” Brown, supra at fn 5. This statement seemingly leaves open the prospect of liability where the hirer of an independent contractor contractually obligates itself to perform a specific duty and breaches that duty, causing injury to the employee. While such liability would be consistent with Hooker, at footnote 3, it would seemingly contradict some of the language found in Privette, Toland and Camargo — which hold against liability where a hirer/landowner observes an unsafe practice by an independent contractor but takes no affirmative steps to stop it (despite an arguable contractual duty to be responsible for all safety issues on the project generally). It would seem that the lawyer for an injured plaintiff would be most prudent under such circumstances to argue the existence of a contractual duty and its breach; but also to seek to establish as much evidence of exercise of affirmative control as possible as well.
Based on the above cases, it is clear that where an injured employee of an independent contractor seeks to establish liability against his employer’s hirer, such can be accomplished where the plaintiff is able to demonstrate retained control by the hirer and the affirmative exercise of that control (or omission to exercise control that was promised) which caused plaintiff’s injury.
While this may seem at first to be quite limiting, the aggressive and creative lawyer can frequently establish factual patterns evidencing retained control at many major construction sites. In particular, by virtue of early consultation with construction experts, counsel can obtain extremely helpful advice on what to seek through discovery and deposition to demonstrate retained control. For example, in one recent matter handled by our firm, a pipe welder employee of an independent contractor was injured while working at an oil refinery owned by the landowner who hired our client’s employer. By virtue of consultation with our experts, we were made aware that the landowner had a very detailed on-site permitting process that it required the independent contractor to follow before any welding on the ground or on scaffolding could occur. This detailed permit process required that the independent contractor have the landowner’s representative inspect the proposed welding site and equipment before work could commence. A “checklist” of some 12 safety items had to be completed and complied with pursuant to the landowner’s requirements before a welding torch could be lit, including inspection of the scaffold that our client fell from. Once we discovered all of this information, it became clear that we had a strong argument that the landowner had clearly retained and affirmatively exercised control over the details of the work such that the Privette doctrine of non-liability was inapplicable — and therefore the longstanding, well-established rule of peculiar risk liability under California law would apply to our case.
It should also be noted that Privette and its progeny do NOT affect California’s well-established law of liability based on breach of a non-delegable duty. A non-delegable duty is a definitive affirmative duty the law imposes on one by reason of his or her relationship with others. One cannot escape this duty by entrusting it to an independent contractor. See e.g. Felmlee v. Falcon Cable Co. (1995) 36 Cal.App.4h 1032, 1036. See also, Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281. Restatement (Second) of Torts Section 424 provides: “One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.”
In Barclay, supra, plaintiff was permitted to assert liability against a defendant landowner on a nondelegable duty theory for violation of the California Fire Code, despite the defendant’s assertion of the applicability of Privette. In Barclay, the defendant landowner owned property on which above ground fuel storage tanks were located. Plaintiff’s employer was hired to help clean the tanks, and plaintiff was injured in an explosion of a fuel tank. Defendant landowner asserted nonliability based on Privette, alleging it did not direct, control or supervise the operative details of the work, nor contribute any advice or equipment and clearly did not in such sense affirmatively contribute to the injury. However, plaintiff alleged that defendant had breached its nondelegable duties imposed by various regulations (including the California Fire Code) that required the defendant to have fire extinguishers within 75 feet of the storage tanks. Plaintiff also presented evidence that the breach of this nondelegable duty affirmatively caused his injury because the injury causing fire could not be extinguished promptly enough. In holding for the plaintiff, the court ruled that the defendant landowner’s breach of its nondelegable duty to provide fire extinguishers under the fire code was sufficient to establish liability (despite Privette and its progeny.) Importantly, the court noted that the requirement of Hooker that there be an affirmative contribution by the landowner to the plaintiff’s injury was satisfied by virtue of the landowner’s omission to comply with the fire code requirement. Thus, where a landowner breaches (or omits to fulfill) its nondelegable duties pursuant to code or regulation, and such breach (or omission) affirmatively contributes to plaintiff’s injury, then the defendant landowner is liable. Notably, the Barclay court seemingly argues that breach of nondelegable duties without “affirmative contribution” by the landowner to the Plaintiff’s injury would not yield liability. However, the Barclay court in reality (for practical purposes) seems to really just be requiring that plaintiff prove that the defendant’s breach of the nondelegable duty is associated with the cause of plaintiff’s injury, which apparently will satisfy the requirement that plaintiff prove the breach “affirmatively contributed” to the injury. From this standpoint, in reality the rule of a landowner’s liability based on breach on nondelegable duty indeed survives Privette and its progeny and remains a strong and viable weapon that plaintiff’s attorneys should never overlook.
To add further strength to this reasoning, consider reviewing also Snyder v. So. Calif. Edison Co. (1955) 44 Cal.3d 793, which is premised on the Restatement (Second) of Torts §428 (Contractor’s Negligence in Doing Work Which Cannot Lawfully Be Done Except Under a Franchise Granted to His Employer) which states:
An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.
A recent case handled by our firm illustrates how the nondelegable duty arguments can be developed. In a construction site death case where an independent truck driver lost control of his dump truck during dirt removal as part of an excavation, it was determined that the excavator was a general engineering contractor, operating under the public authority of the State of California with a Class A license. This license specifically authorizes the contractor to engage in excavating. See California Business & Professions Code §7056. Furthermore, we determined that excavation work, such as that on the subject construction site in La Jolla, California, could only be carried out under a permit granted by the City of San Diego (see San Diego Municipal Code §129.0601, et seq.), and in compliance with city grading regulations. See San Diego Municipal Code §142.0101. Further, we determined that neither the independent trucker, nor his employer were general engineer contractors licensed by the State of California to engage in excavation work. Therefore, we argued that the excavator alone had a non-delegable duty to perform the excavation at the construction site and was liable for any negligence of its subcontractors, (and violation of codes and regulations related to the excavation) regardless of the fact that the excavation contractor was arguing that it had no retained control over the dirt hauling portion of the work.
We further argued that the excavator was contracted to exercise safety and to complete the excavation of the subject construction site, including the hauling of property (dirt) from the site. California Vehicle Code Section 34601(a) defines a “motor carrier of property” as “any person who operates any commercial motor vehicle…” Additionally, California Vehicle Code Section 34601(b) defines “for-hire motor carrier of property” as “a motor carrier of property…who transports property for compensation.” We argued this is precisely the function the excavator was serving on the excavation site, with respect to removing dirt. In other words, the excavator was hired by the general contractor as a “for-hire” carrier to haul dirt off the property and thus falls into the legal category of “for-hire” carrier under this code section. We then argued that “for-hire” carriers are subject to the non-delegable duty rule. Hill Brothers Chemical Co. v. Superior Court (2004) 123 Cal.App.4th 1001. As such, because the excavator was a “for-hire” carrier, it could not delegate its duty to transport material safely to an independent contractor.
It is clear, based on the above recited caselaw that many avenues of liability remain viable despite the dramatic limitations set forth in Privette and its progeny. Creative discovery is necessary to establish the defendant’s retained control and the affirmative exercise thereof. Lastly, despite Privette, the rule of liability for breach of a nondelegable duty by the hirer of an independent contractor which affirmatively contributes to the plaintiff’s injury remains a strong and viable weapon for plaintiff’s lawyers.
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