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. 4th 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.
Khosh v. Staples Construction Company, Inc. (2016) 4 Cal. App. 5th 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