Nearly 20 years ago the California Supreme Court decided Privette v. Superior Court, 5 Cal.4th 689 (1993), in which it held that a property owner who hires an independent contractor is not vicariously liable for injuries sustained by an employee of the independent contractor resulting from special or peculiar risks inherent in the work. Since then, the Privette doctrine has been expanded to protect general contractors as well as property owners, but it has also been limited by several exceptions including an owner or general contractor’s breach of a non-delegable statutory duty and failure to warn of latent dangerous conditions.
In Tverberg v. Fillner Construction, Inc., 202 Cal. 202 Cal. App. 4th 1439 (January 26, 2012), Fillner Construction, Inc. (“Fillner”) served as general contractor on a project involving the construction of a metal canopy over gasoline dispensers at a gasoline station in Dixon, California. Fillner contracted with Lane Supply to construct the canopy, and Lane Supply in turn subcontracted the work to Perry Construction Company (“Perry”), who hired J.T. Construction, a sole proprietorship owned by Jeffrey Tverberg, to act as foreperson of Perry’s work crew to construct the canopy. Fillner also contracted with Alexander Concrete Company (“Alexander Concrete”) to erect eight bollards – concrete posts which prevent vehicles from running into the gasoline dispensers.
When Tverberg started on job, Alexander Concrete had already excavated eight holes for the bollard footings. The holes were four feet wide and four feet deep and the area where the holes were located were marked with stakes and safety ribbon. On Tverberg’s first day, he asked Steve Richardson, Fillner’s “lead man” to cover the holes with metal plates that were on the site, but Richardson said that he did not have the equipment to do so that day. The next day, Tverberg once again asked Richardson to cover the holes but Richardson did not do so. Later that day, as Tverberg was walking from his truck he fell into one of the holes and injured himself.
Tverberg sued Fillner and Perry for his injuries. What happened next was a series of appeals and reversals by the California Supreme Court. First, the trial court found that Fillner could not be held vicariously liable to Tverberg under the Privette doctrine. The California Court of Appeals for the First District reversed, but the Court of Appeals was in turn reversed by the California Supreme Court, which resolved a conflict within the Courts of Appeal regarding whether a hirer of an independent contractor is vicariously liable to the contractor for the contractor’s own injuries resulting from a risk inherent in the work, by holding that a hirer (Fillner) of an independent contractor (Tverberg) is not vicariously liable to the contractor for the contractor’s own injuries resulting from a risk inherent in the work.
However, the California Supreme Court remanded the case back to the Court of Appeals to determine whether Fillner could be directly, as opposed to vicariously liable, for Tverberg’s injuries. On remand, the Court of Appeals held that Fillner could be held directly liable either because: (1) Fillner had a non-delegable duty to comply with California Occupational Safety and Health Act (“Cal-OSHA”) regulations requiring that pits be barricaded or securely covered; or (2) Fillner retained control over the jobsite in such a manner that it affirmatively contributed to Tverberg’s injuries.
The Court of Appeal’s second decision was also appealed to the California Supreme Court which was in the midst of deciding another breach of non-delegable duty case, SeaBright Insurance Company v. U.S. Airways, Inc., 52 Cal.4th 590 (2011), in which it ultimately held that hirer presumptively delegates to an independent contractor its tort law duty to provide a safe workplace for the contractor’s employees. Following the Supreme Court’s decision in SeaBright, it transferred the Court of Appeal’s second decision back to the Court of Appeals with directions that it vacate and reconsider its decision in light of SeaBright.
Back for the third time with the Court of Appeals, the Court of Appeals determined that in light of SeaBright, Fillner impliedly delegated its Cal-OSHA duties to provide a safe workplace to Tverberg and, as such, Fillner owed no duty to Tverberg who could therefore not recover from Fillner for his injuries. However, the Court of Appeals reaffirmed what it had held earlier in its second decision, that Fillner could be held directly liable to Tverberg because it retained control over the jobsite in such as manner that it affirmatively contributed to Tverberg’s injuries. The Court of Appeals found that Fillner’s “affirmative contribution” to Tverberg’s injuries could be found from: (1) Fillner’s direction to Alexander Concrete to dig the bollard holes in the area where Tverberg was supposed to erect the canopy; (2) Fillner’s determination that there was no need to cover or barricade the bollard holes because the stakes and safety ribbon were sufficient; or (3) Fillner’s failure to cover the bollard holes after Tverberg asked Fillner’s “lead man” twice to do so.
Tverberg v. Fillner highlights the California Supreme Court’s continuing support of the Privette doctrine, but also highlights the doctrine’s limitation to claims of vicarious, as opposed to direct, liability. Notwithstanding the broad protections provided by the Privette doctrine, Property owners and general contractors can be found to be directly liable to independent contractors if they retain control over the jobsite in such a manner that their actions affirmatively contribute to the contractor’s or their employee’s injuries.