General Contractor Not Liable for Injuries to Subcontractor’s Employee Based on a Claim of Negligent Scheduling

The Privette doctrine, subject to certain exceptions, provides that when a general contractor hires a subcontractor, the general contractor is not liable for injuries that occur to the subcontractor’s employees. One exception to the Privette doctrine is where a general contractor retains control over a jobsite in such a manner that it affirmatively contributed to the employee’s injuries.

In Brannon v. Lathrop Construction Associates, Inc., No A129695 (June 12, 2012), Brian Brannon, an employee of Bratton Masonry (“Bratton”), a subcontractor to Lathrop Construction Associates, Inc. (“Lathrop”), the general contractor on a public school construction project located in El Cerrito, California, sued Lathrop after he slipped and injured himself on scaffolding which had been erected by another subcontractor, M. Perez Company, Inc., doing business as Henley & Company (“Henley”).

Tom Kennon, Lathrop’s onsite project manager, was in charge of managing safety on the site for Lathrop. Lathrop had final say on coordination of the work and had authority to stop a subcontractor’s work for safety issues. Before beginning the project, Kennon had discussed sequencing with Bratton and Henley, and It was discussed that Henley would do its plastering first and remove its plaster scaffold before Bratton started its masonry work. However, when Henley finished its plastering work, Henley left a section of scaffolding up at the request of another subcontractor, Advanced Interiors (“AI”), so that AI could finish its framing work.

Peter Garcia, Bratton’s foreman, was responsible for ensuring that the site was safe for Bratton employees. Garcia did not need authority from Lathrop to call off work if he felt that something was unsafe. Although Garcia was aware of the plaster scaffolding, he did not have any safety concerns about his workers working around the scaffolding. At the time of the accident, Brannon was trying to cross over the scaffolding to gain access so that he could lay masonry in the area underneath it. However, as he stepped onto the second rung of the scaffolding, which he alleged he had to do in order to gain access to the area where he was to perform masonry work, Brannon slipped off the rung because it was wet and his feet were muddy. Thereafter, Brannon sued.

On appeal from the trial court’s grant of summary judgment in favor of Lathrop, Brannon argued that Lathrop negligently scheduled bricklayers to perform work in an area that it knew was obstructed by a scaffold, and that because Lathrop was responsible for scheduling on the project that it had retained control over the site in such a manner that it affirmatively contributed to his injuries. The California Court of Appeals for the First District disagreed holding that Lathrop’s responsible for scheduling alone, was insufficient to show that Lathrop had retained control over the site in a manner that affirmatively contributed to Brannon’s injuries, and that a more direct causal relationship was required:

Here, it was undisputed that Lathrop did not direct Brannon’s work, and did not tell Brannon to gain access under the plaster scaffold the way he did. . . . Here, there was no evidence Lathrop knew before Brannon’s fall he or other Bratton employees were climbing over the scaffolding in the manner they did, or that this practice posed a safety hazard. Bratton’s own foreman, who did know about the practice and was responsible for the safety of Bratton’s employees, stated he had no safety concerns about it. . . .This would be a different case if Bratton’s foreman or one of its employees had asked Lathrop to remove the scaffolding for safety reasons, Lathrop had promised to do so, and then it negligently failed to follow through.

The Brannon Court ruling highlights that Privette doctrine cases are very fact specific as evidenced by the Court’s comments, and that when determining whether a general contractor retained control over a site in such a way as to have affirmatively contributed to an employee’s injuries, that the courts will examine whether the general contractor directed the employee to undertake the activities giving rise to the injuries, whether the general contractor was aware of the activities giving rise to the injuries and whether it knew or should have known that the activities posed a safety hazard, and whether the general contractor was told to remove a safety hazard but failed to do so.