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Cases holding General Contractor and Developer Liable (“Anti Privette Doctrine”)

On Behalf of | Jun 10, 2016 | Construction |


Privette is alive and well, but an injured sub-contractor’s employee can argue the following to try to hold the general contractor or property owner liable.  These are for very bad general contractors and property owners who deserve to be nailed.Contractual safety preclusion. Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, held that a general contractor may be liable for injury to the employee of a subcontractor when the general contractor contractually precluded the subcontractor from implementing the precise safety precaution that the plaintiff contended was necessary to protect the public, including the subcontractor’s employee. (Id. at p. 1134; but cf. Ruiz v. Herman Weissker, Inc. (2005) 130 Cal.App.4th 52, 66 [distinguishing circumstance of contractual retention of exclusive control].)

Hidden property defects. Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, held a landowner liable to an employee of an independent contractor to the extent that the landowner knew or should have known of a latent or concealed preexisting hazardous condition that the contractor did not know of and could not have reasonably discovered, and the landowner failed to warn the contractor of the condition. (Id. at p. 664.)

Providing unsafe equipment. McKown v. Wal-Mart Stores, Inc. (2004) 27 Cal.4th 219 held that a hirer was liable to an employee of an independent contractor on the basis that the hirer’s provision of unsafe equipment affirmatively contributed to the employee’s injury. (Id. at p. 222.)

Confusing Public Policy Case with limited application.  In Vargas v. FMI, Inc. (2015) 233 Cal.App.4th 638  the possibility of hirer liability resulting from certain other statutory and regulatory duties, or work under a franchise or license agreement. (See id. at p. 654 [hirers held liable for injury to independent contractor truck driver when his co-driver crashed the truck they were driving.  The Court distinguished Privette on the basis that Vargas involved duties “to protect the public” owed pursuant to the federal Motor Carrier Act and a “franchise granted by public authority” (i.e., a federal motor carrier permit)].) According to Vargas, the court should “review the pertinent statutes and regulations to determine whether they preclude the applicability of the Privette doctrine and prohibit delegation of the hirer’s tort law duty in the particular case.” (Id. at p. 654.)

But Vargas cannot ignore SeaBright and its reliance upon Evard v. Southern California Edison (2007) 153 Cal. App.4th 137 holding that certain safety duties under California’s General Industry Safety Orders were nondelegable, is arguably inapplicable because Evard was effectively overruled by SeaBright.  Therefore, Vargas was an example of federal law preemption and supremacy but may promote further challenges to the Privette doctrine.

Cal-OSHA possibly can used to establish Negligence.   Elsner v. Uveges (2005) 34 Cal.4th 915 contains language supporting that Cal-OSHA can establish standards and duties of care. However, I think the opening is very small because Elsner involved the hirer’s direct negligence in providing unsafe scaffolding. (Id. at p. 924.) Later, in 2011, SeaBright Ins. v. US Airways (2011) 52 CA4th 590 subsequently and unambiguously repudiated the argument that Cal-OSHA duties are nondelegable and thus made clear that Cal-OSHA does not provide an avenue to end-run Privette.