By Eric Ganci
Let me lay out a set of facts, then get into the law. It’s a little easier to understand things this way.
Let’s say there is a Hiring Company, Company A, who hires Independent Contractor (Company IC I’ll call it). And then Company IC hires Worker C.
Let’s further say Worker C is injured on the job site. Who may be liable? Is Company IC liable? Or can Company A also be liable?
As with most answers in the law, the answer is “it depends.” This issue invokes established California law, called the Privette Doctrine, based on the California Supreme Court 1993 case Privette v. Superior Court*.
Privette holds: when “the injuries resulting from an independent contractor’s performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers’ compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries.”
That last part is key: “from the person who hired the contractor but did not cause the injuries.” So one key issue is whether Company A “caused the injuries.” But what does that mean?
This is where we get into this January 31, 2023 filed case Marin et al. v. Department of Transportation**.
There was a stretch of road maintained by the California DOT, Department of Transportation. The DOT employed an Independent Contractor to perform construction work, including grinding and removing old asphalt and placing new asphalt, on a busy road. The Independent Contractor hired someone, the Decedent, to do this work.
Sadly, a drunk driver hit and killed the Decedent while Decedent was doing this work for the Independent Contractor.
Decedent’s family filed a lawsuit against the DOT. The Trial Court granted a motion for summary judgment (MSJ) in favor of the DOT, holding “the DOT cannot be held liable under plaintiffs’ theory because the DOT expressly delegated jobsite safety to decedent’s employer…” the Independent Contractor.
This Court affirmed that ruling.
The Court in Marin starts with Privette and then discusses holdings that help explain Privette. The Court discusses:
To explain the theory of how delegation can apply, the Court cites SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590. “There, the court considered whether the rule announced in Privette applied when a hirer failed to comply with workplace safety requirements concerning the subject matter of the contract and a worker’s injury is alleged to have occurred as a consequence of that failure.”
“By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract. That implicit delegation includes any tort law duty the hirer owes to the contractor’s employees to comply with applicable statutory or regulatory safety requirements.” I added emphasis.
Privette has exceptions though. For example, whether the Hirer of the Independent Contract retains control over the worksite. This is the case Hooker v. Department of Transportation (2002) 27 Cal.4th 198: “’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 a worksite’; rather, ‘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.’” Again, I added emphasis.
If Worker is injured on the job site, the Court presumes the Independent Contractor is liable and not the Hiring Company: “If a contract worker becomes injured after that delegation [of safety] takes place, we presume that the contractor alone—and not the hirer—was responsible for any failure to take reasonable precautions.” This is the case 2021 case Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256, 271.
Thus, “[t]he 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[.]”***
Citing back to Sandoval, the “[c]ontract workers must prove that the hirer both retained control and actually exercised that retained control in such a way as to affirmatively contribute to the injury.” Sandoval at page 276.
As Marin v. DOT explains: “A hirer ‘actually exercise[s]’ its retained control over the contracted work when it involves itself in the contracted work ‘such that the contractor is not entirely free to do the work in the contractor’s own manner.’”
“Moreover, ‘the affirmative contribution requirement can be satisfied only if the hirer in some respect induced—not just failed to prevent—the contractor’s injury-causing conduct,’ or ‘where the hirer’s exercise of retained control contributes to the injury independently of the contractor’s contribution (if any) to the injury.’”
All of this is a sad result for the family of Decedent in their approach to hold DOT liable. But it’s important California law for lawyers to know and understand.
*Cited as Privette v. Superior Court (1993) 5 Cal.4th 689
**Cited as of 3/1/23 as 2023 WL 2181341
***Marin v. DOT, citing Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28, 39.