When affirming the trial court's granting of summary judgment in favor of a general contractor under the Privette doctrine, the California Second Appellate District further upheld the general rule in California that an injured employee of an independent contractor cannot recover tort damages from the contractor's hire for work related injuries.

Plaintiff was an employee of an electrical contractor, Myers Power Products, Inc. ("Myers"). Myers Power Products, Inc. was a subcontractor to DK Electrical Systems, Inc. ("DK"). DK was a subcontractor to Staples Construction Company, Inc. ("Staples"). California State University – Channel Islands ("University") had hired Staples to install a backup electrical system.

Plaintiff was injured when performing work for Myers at the project. Myers had informed Staples that to complete its work, Myers needed the existing electrical system shutdown. Plaintiff arrived at the project approximately two hours before the scheduled shutdown. The University's project manager provided plaintiff access to the area in which he needed to work. Plaintiff performed his work when the existing electrical system was still energized, resulting in serious injuries to plaintiff.

The University – Staples contract contained provisions which obligated Staples to exercise precaution at all times to protect persons and property, to maintain a superintendent on site to direct the project at all times, and to be exclusively responsible for the safety of its subcontractors. Staples did not have a superintendent on site when plaintiff was injured.

Plaintiff sued Staples under a general negligence theory to recover damages for his injuries. Staples filed a motion for summary judgment against plaintiff's claims relying on the doctrine established in Privette v. Superior Court (1993) 5 Cal. 4^th 689. The trial court granted Staples' motion for summary judgment.

Plaintiff appealed the trial court's decision to the Second Appellate District. On appeal, plaintiff argued that Privette did not apply because Staples exercised control over plaintiff's work and because Staples had violated non-delegable duties when it did not have a supervisor on site and did not draft a written protocol for the shutdown of the existing electrical system.

In Khosh v. Staples Construction Company, Inc. (2016) 4 Cal. App. 5^th 712, the Second Appellate District upheld the trial court's granting of Staples' motion for summary judgment. With respect to the issue of retained control, the court noted that the University – Staples contract required Staples to "keep all phases of the work under its control," to comply with safety laws and regulations, and to take certain affirmative safety measures, including implementing a safety program and installing safety devices on job equipment. That contract also made Staples exclusively responsible for the safety of its subcontractors. The court recognized that such language creates a triable issue of fact on the issue of retained control. However, the court further noted that in order for plaintiff to prevail on the issue of retained control, plaintiff must show "active participation" on the part of Staples. The court stated that "active participation" may consist of directing the subcontractor about the manner or performance of the work, directing that the work be performed by a specific method, or actively participating in the performance of the work. Evidence of Staples' failure to comply with contract provisions, the court found, was not evidence of active participation. Accordingly, the court found that Staples had not exercised control over plaintiff's work.

With respect to the non-delegable duty issue, plaintiff contended that Staples had violated both California Code of Regulations and National Fire Protection Association standards, and such standards created a non-delegable duty in favor of plaintiff and imposed upon Staples. However, the court reasoned that the safety regulations in this matter do not impose non-delegable duties because the provisions only apply to specific work and apply only when that work is performed. Moreover, the court found that the absence of a written protocol and the failure to have a supervisor on site did not affirmatively contribute to plaintiff's injuries.

The appellate court's ruling in Khosh suggests that the California courts will still apply Privette in a significant number of construction site accident cases, thereby affording higher tiered contractors a defense to lawsuits filed by the injured employees of subcontractors.