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General Contractor Liability under the Privette Doctrine

By October 3, 2012October 24th, 2018Charles Murawski, Construction Litigation Blog

Charlie Murawski

What happens if a general contractor hires an independent contractor to perform dangerous work and one of the contractor’s workers is injured on the job?  Is the general contractor liable for the worker’s injuries?  In accordance with the case of Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny, the answer is “no,” unless the general contractor exercised control over the details of work and affirmatively contributed to the injuries.

In Privette, the California Supreme Court examined the peculiar risk doctrine, which makes property owners liable for injuries to an independent contractor’s employees performing inherently dangerous work on the owner’s land. The peculiar risk doctrine is based on the belief that allocating the risk of loss to the hiring property owner, for whose benefit the work was performed, would more fairly ensure compensation to the innocent victim and promote workplace safety.  The Privette Court, however, held that those justifications did not apply when the contractor’s employee could recover from the workers’ compensation system.  Therefore, the Court found that a non-negligent contractor was not responsible for the injuries of an employee of a negligent subcontractor.

The Supreme Court further refined the Privette decision in a case called Hooker v. Department of Transportation (2002) 27 Cal.4th 198.  There, the Supreme Court held that a hirer of an independent contractor may be held liable to the contractor’s injured employee if the hirer not only retains control over the details of the work but exercised that control in a manner that “affirmatively contributed” to the employee’s injuries.  For example, an affirmative contribution can occur by actively directing the contractor or its employees, by supplying defective equipment or by promising to undertake a particular safety measure and then negligently failing to do so, resulting in an employee’s injury.  Merely retaining the ability to control or direct the work, without the actual exercise of that authority, is insufficient to impose liability on the hirer.

Further, in SeaBright Insurance Company v. US Airways, Inc., (2011) 52 Cal. 4th 590, the California Supreme Court held that the hirer of an independent contractor delegates to that contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the workplace, including any duty to comply with the California Occupational Safety & Health Act of 1973.  The Court reasoned that because the independent contractor had sole control over the manner in which the work was performed, the hirer (US Airways) could not be held liable to the contractor’s employee for injuries arising from unsafe site conditions.

Thus, an injured worker cannot recover from a general contractor unless he or she proves that the general contractor’s exercise of retained control affirmatively contributed to his or her injuries.  However, if the general contractor exercised active control over the employees or operations of the sub-contractor which affirmatively contributed to the injury, then the general contractor may potentially be found liable.