header-construction-lawsSome strong cases extending the 1993 “Privette doctrine”,  Privette v. Superior Court (1993) 5 Cal.4th 689, holding that if an independent contractor’s employee is injured on the job and subject to workers’ compensation coverage, he cannot seek recovery of tort damages from someone who hired the contractor, but did not cause the injury, have been expanded.  Plaintiffs still will try to show that the hirer retained control over the cause of the accident.  But these cases  help refute many of plaintiff’s arguments such as:Failure to identify or suggest specific precautions. Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253: Rejected hirer liability where the hirer failed to state in its contract that the contractor should take special precautions to avert a peculiar risk: A hirer “has no obligation to specify the precautions an independent hired contractor should take for the safety of the contractor’s employees.” (Id. at p. 267.) Although a person hiring an independent contractor to do inherently dangerous work can be liable under the peculiar risk doctrine for failing to see to it that the hired contractor takes special precautions to protect neighboring property owners or innocent bystanders, there is no obligation to specify the precautions that the contractor must take for the safety of the contractor’s own employees. (Ibid.)

Failure to exercise retained control. Hooker v. Dept. of Transp. (2002) 27 Cal.4th 198: Even where a hirer retained general control over safety measures on the job site, its failure to exercise that control did not subject the hirer to liability. “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 the 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.” (Id. at p. 202.) “The mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to the plaintiff .” (Id. at p. 209.)

Other subcontractors’ negligence. Sheeler v. Greystone Homes, Inc. (2003) 113 Cal.App.4th 908: A general contractor was not liable when a subcontractor injured another subcontractor’s employee: “[T] he limitations on hirer liability in Privette and its progeny apply even when injuries to a subcontractor’s employee are not the result of the subcontractor’s own negligence, but arise from the activities of neighboring subcontractors.” (Id. at p. 922, fn. 8.)

When no workers’ compensation benefi ts are available to injured contactor. Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518: Held that a hirer is not liable where an independent contractor (rather than the contractor’s employee) is injured and the contractor was not entitled to workers’ compensation benefits. Relying on the hirer’s presumed delegation to the contractor of responsibility for workplace safety, the Supreme Court held that the contractor “has authority to determine the manner in which inherently dangerous … work is to be performed, and thus assumes legal responsibility for carrying out the contracted work, including the taking of workplace safety precautions.” (Id. at p. 522.).

Not Enforcing statutory safety regulations. SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590. Held that Cal-OSHA could not be used to impose general-negligence duties of care in cases governed by Privette. So a maintenance worker injured while performing work on a baggage conveyor belt sought to rely on Cal-OSHA safety requirements to show that the hirer owed a duty of care. This argument was rejected holding that Cal-OSHA could not be used to expand hirer liability beyond Privette’s mandates. (Id. at p. 601.) Rather, all safety duties were implicitly delegated as a matter of law to the contractor.

General contractor’s scheduling of subcontractors. Brannan v. Lathrop Constr. Assn., Inc. (2012) 206 Cal. App.4th 1170: Held that a general contractor’s act of scheduling of the work of various subcontractors on a project does not suffice to bring the claim outside of Privette’s rule of non-liability

The special employment doctrine serves to bring the employee of an independent contractor within workers’ compensation exclusivity for the hirer as a “borrowed” employee in the same way that workers’ compensation exclusivity would apply to the hirer’s own employee. (See, e.g., Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174-175.) Contract language identifying the worker as an independent contractor and not an employee is not determinative. (Id. at 176.)