Privette Doctrine: Not An Absolute Shield

The “Privette Doctrine” is a well-accepted rule that has governed the liability of general contractors and property owners for workplace injuries suffered by a subcontractor’s employee.  In Privette v. Superior Court (1993) 5 Cal.4th 689, the California Supreme Court held that Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work.  The rationale for this limitation was that the subcontractor’s employee will usually be covered under the subcontractor’s workers compensation policy.

The courts have created various exceptions to this rule, including exceptions based on claims involving a breach of a non-delegable duty imposed by statute, claims arising out of injuries caused by defective equipment supplied by the general contractor, claims based on a failure to warn of a hidden dangerous condition, and where a general contractor retains control over a jobsite in such a manner that it affirmatively contributed to the employees injuries.

In the Brown v. Beach House Design & Dev., 2d Civ. B314946 (Cal. Ct. App. November 11, 2022), the California Court of Appeal clarified that direct liability applies when a general contractor does not fully delegate a duty to maintain, in a safe condition, scaffolding equipment.  Additionally, the court also found that the contractor was also potentially directly liable to the plaintiff because it allowed unsafe scaffolding equipment erected by the plastering subs to be used by window-framers, including the injured plaintiff. 

Facts

Defendant Beach House Design and Development (sometimes called Beach House) was the general contractor.  Beach House subcontracted with ORourke Construction, Inc. (sometimes called ORourke) to refinish carpentry, and with A&D Plastering Co. (sometimes called A&D) who erected the scaffold on the jobsite and did plastering work on the project.

On June 16, 2017, ORourkes carpenters, including Plaintiff Kyle Brown, were on the property to mill, prime, and install window casings. Plaintiff was severely injured after he fell from a defective scaffold from a substantial height. He sued both the general contractor and the scaffolding subcontractor for negligence and alleged that he fell from scaffolding erected by Beach House and A&D and that each of them failed to properly maintain it.  After plaintiffs fall, Beach Houses principal and A&Ds principal inspected the scaffolding and determined that , the scaffold was not properly secured to the building and in that condition it was unfit for use. 

The A&D subcontract provided that A&D would furnish scaffold and equipment that may be necessary to do the Work expeditiously, provide traffic and safety controls at all times while using such equipment at the Project, and [promptly] remove and replace any defective material, damaged [sic] caused by Subcontractor or Work upon notice from Contractor, Owner or Architect. 

Beach Houses site supervisor testified that he never inspected the scaffolding to ensure it was safe because that was A&Ds responsibility.  In addition, Beach House claimed it did not direct the means or methods of the work performed by ORourke or its employees, including plaintiff, and it did not provide any equipment or materials to ORourke. However, there was documentary evidence that suggested that Beach House had instructed A&D to erect scaffolding for the use of ORourke Construction employees” and an invoice from A&D to Beach House for Scaffold Rental paid by Beach House.  A&D’s site supervisor testified that he did not inspect the scaffolding daily and believed such inspections were the responsibility of Beach House.

The subcontract between Beach House and ORourke provided that ORourke was responsible for furnishing all materials, labor, tools, supplies, equipment, permits, services, and supervision necessary for completion of the scope of work [] noted in the attached proposal. ORourke testified his bid did not include the cost of scaffolding and that he had never previously arranged for scaffolding. ORourkes scope of work included installing second and third story windows, which required scaffolding and expected Beach House would provide the scaffolding. 

ORourke provided evidence that he saw other subs using the A&D scaffolding and believed he and his employees had permission to use it. He testified that on other job sites, he never asked for permission to use scaffolding. At the Beach House site, ORourke was not told not to use the scaffolding. Beach Houses site manager testified he knew ORourkes employees made regular use of the scaffolding, and he never asked them not to do so. After the scaffold was repaired following the plaintiff’s accident, ORourke and his employees continued to use the scaffold.

Summary of Court’s Analysis

The trial court granted summary judgment for Beach House, finding that the plaintiffs claims against Beach House were barred by exceptions to the peculiar risk doctrine set out in the California Supreme Court in Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and cases applying it.  The Court of Appeal reversed, finding that the plaintiff alleged direct liability and thus the peculiar risk doctrine exceptions under Privette may apply.  The Court also found triable issues of material fact as to whether the general contractor fully delegated to the scaffolding subcontractor the duty to maintain the scaffolding in a safe condition.

Under Privette, a general contractor is not liable for injuries suffered by a subcontractors employee unless (1) the general contractor retained control over the subcontractors work and the exercise of control affirmatively contributed to the employees injuries, or (2) the general contractor provided unsafe equipment that affirmatively contributed to the subcontractors employees injury. 

Neither ‘actual exercise’ nor  ‘affirmative contribution’ require that the general contractors negligence consist of an affirmative act. The critical inquiry in evaluating the exercise of retained control is the relationship between the [general contractors] conduct and the [subcontractors] conduct. (Sandoval, supra, 12 Cal.5th at p. 277, italics added.)  In Hooker v. Department of Transp. (2002) 27 Cal.4th 198 (Hooker) the Court held that a hirer of an independent contractor is liable to an employee of a contractor insofar as a hirers exercise of retained control affirmatively contributed to the employees injuries. (Id. at p. 225.) A general contractors negligence may take the form of any act, course of conduct, or omission that falls within its duty under Hooker. (Sandoval, at p. 277)(emphasis added.) 

In Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 671 the Court clarified that when an independent contractor does not “fully delegate the task of providing a safe working environment, but in some manner participates in how the job is done, and that participation affirmatively contributes to the employees injury, the hirer may be liable in tort to the employee. (Ibid.)(emphasis added)  Here, the court found that there were triable issues of material fact as to whether the Beach House fully delegated to A&D the duty to maintain the scaffolding in a safe condition. First, the Court noted that it was unclear whether the contract was in effect at the time of the incident as the agreement provided A&D would “[s]et scaffolding where needed for lathing and plastering for a period of 90 days.” The scaffolding remained on the worksite for more than one year and the plaintiff was injured about nine months after it was erected. 

Furthermore, the A&D contract did not set forth who was responsible for inspecting and maintaining the scaffolding after its installation. For instance, paragraph 5.1(4) which addressed safety controls stated that A&D would furnish scaffolding and provide traffic and safety controls at all times while using such equipment at the Project. However this paragraph did not require A&D to provide such controls to protect other subcontractors or their employees or to provide said at any other time when it was not using the scaffolding.  Thus, the Court found triable issues as to whether Beach House fully delegated to A&D the responsibility to provide and maintain the scaffolding.

Beach House further argued that it did not direct the means or methods of the work performed by ORourke or its employees, including plaintiff, and it did not provide any equipment or materials to ORourke.  However, the court disagreed based on the fact that A&D did not inspect the scaffolding on a daily basis, that the scaffolding remained up on the property for more than a year, and that there was evidence that Beach House had instructed A&D to erect scaffolding for the use of ORourke Construction employees.

Ultimately, the court found that the scope of work documentation between the general contractor and plaster subcontractor was silent about the duty to maintain the scaffolding equipment and the contract between the general contractor and plaintiff’s employer glossed over the equipment necessary for the work.  The court found that  by allowing the framers to use the scaffolding onsite provided another subcontractor, the general contractor was open to direct liability because it could be found to have retained control over the scaffolding.

Why is this Case Important?

This case is important because it is a reminder that the Privette Doctrine is not an absolute shield to liability for general contractors and property owners and that courts do look to the details of the contracts and conduct of the owner, general contractor, and subcontractors in determining whether the Privette Doctrine is applicable. For contractors and property owners, it is important to ensure that responsibility for safety on the worksite and the conditions of the job are fully and expressly delegated to the subcontractor. For the defense practitioner, this case teaches us that the courts also look beyond the contract itself, to the conditions of the project and the conduct of the parties, to determine whether a contractor has really fully delegated the task of providing a safe workplace.

 

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