Construction Injuries Under the Privette Doctrine. An Electrifying, but Perhaps Not Particularly Shocking, Story . . .
We’ve talked about the Privette doctrine before (see here, here, and here). The Privette doctrine, named after the court case Privette v. Superior Court (1993) 5 Cal.4th 689, provides in general that project owners and contractors are not responsible for worksite injuries suffered by employees of lower-tiered contractors they have hired, the rationale being that such workers should already be covered under their employers’ workers’ compensation insurance policies.
In the twenty years since Privette was decided, however, several exceptions have evolved that have narrowed the doctrine. One exception, known as the retained control exception, allows a contractor’s employees to sue the “hirer” of the contractor (that is, the higher-tiered party who “hired” the lower-tiered party whose employee is injured) when the hirer retains control over any part of the work and negligently exercises that control in a manner that affirmatively contributes to the employee’s injury. Hooker v. Department of Transportation (2002) 27 Cal.4th 198.
Another exception, known as the nondelegable duty exception, permits an injured worker to recover against a hirer when the hirer has assumed a nondelegable duty, including statutory and regulatory duties, that it breaches in a manner that affirmatively contributes to the injury. Padilla v. Pomona College (2008) 166 Cal.App.4th 661.
In a recently decided case, Khosh v. Staples Construction Company, Inc., Case No. B268937 (November 17, 2016), the California Court of Appeals for the Second District examined the application of the Hooker and Padilla exceptions where a general contractor was contractually responsible for overall site safety.
Khosh v. Staples Construction Company, Inc.
The California State University Channel Islands (I didn’t even know there was such a state university until reading this case) was having some electrical work done on its campus.
The University hired Staples Construction Company, Inc., to install a backup electrical system. Staples in turn hired DK Electrical System, Inc., as the high-voltage subcontractor on the project. And DK Electrical in turn hired Myers Power Products, Inc., to construct and install electrical switchgear for the system. Al Khosh was an employee of Myers.
The prime contract between Staples and the University required Staples to “exercise precaution at all times for the protection of persons and their property” and to “retain a competent, full-time, on-site superintendent to . . . direct the project at all times.” It also made Staples “exclusively responsible” for the health and safety of its subcontractors and required Staples to submit “comprehensive written work plans for all activities affecting University operations,” including utility shutdowns.
While working on the project, Myers informed Staples that it needed three days to accomplish its last task on the project, which required that the electrical system be shutdown. As such, the University scheduled a campus-wide electrical shutdown.
Two and one half hours before the scheduled shut down time Khosh arrived at the University with one of his helpers. The University’s project manager let Khosh and his helper into a substation containing the electrical switchgear. At the time, Staples did not have any personnel at the University.
Well, you can imagine what happened next: Khosh got the shock of his life. The case doesn’t describe Khosh’s injuries, and I don’t mean to make light (ok, I am a little – everything is funny so long as it’s happening to someone else), but I’m envisioning a tragic ACMEesque mishap a la Road Runner.
Khosh later sued Staples for negligence. In response, Staples filed a motion to dismiss the complaint arguing that the Privette doctrine applied. In opposition to the motion, Khosh argued that the Hooker and Padilla exceptions applied because: (1) Staples retained control over the work and affirmatively contributed to his injuries; and (2) Staples violated a nondelegable regulatory duty because it did not have a qualified electrical worker present to supervise Khosh and did not prepare a written procedure for the electrical shutdown.
The trial court agreed with Staples and Khosh appealed.
The Court of Appeals Decision
Application of the Hooker Exception
On appeal, the Court of Appeals explained that under the Hooker exception a contractor’s employee may sue the hirer of the contractor if he/she can show that: (1) the hirer retained control over any part of the work; (2) the hirer negligently exercised that control; and (3) the hirer exercised that control in a manner that affirmatively contributed to the employee’s injury.
While Khosh could show that Staples was contractually responsible for general safety and oversight on the project, he could not show that Staples “affirmatively contributed” to his injury, stated the Court of Appeals:
In order for a worker to recover on a retained control theory, the hirer must engage in some active participation. An affirmative contribution may take the form of directing the contractor about the manner or performance of the work, directing that the work be done by a particular mode, or actively participating in how the job is done. Evidence of Staples’s omissions does not create a triable issue of fact regarding affirmative contribution.
The Court of Appeals was careful to point out, however, that while an “omission” to act generally does not rise to the level of an affirmative contribution: “[w]hen a hirer promises to undertake a particular safety measure, the negligent failure to fulfill that specific promise may constitute an affirmative contribution.” Here, though, explained the Court, Staples’ general promise to be “responsible for site safety” did not constitute a “specific promise to undertake a specific safety measure.”
Application of the Padilla Exception
As to the Padilla exception, the Court of Appeals explained that a contractor’s employee may recover when: (1) the hirer has a nondelegable duty; (2) the hirer breached that nondelegable duty; and (3) the hirer breached that nondelegable duty in a manner that affirmatively contributed to the employee’s injury.
Here, the California Code of Regulations required that a qualified electrical worker supervise employees in training who are working on energized conductors or equipment connected to energized high-voltage systems. Moreover, the National Fire Protection Association’s standards required that complex shutdowns include a written plan of execution that identifies the person in charge.
However, explained the Court of Appeals, while the Privette doctrine “applies when the party that hired the contractor fails to comply with the workplace safety requirements concerning the precise subject matter of the contract[,] [t]he hirer of an independent contractor presumptively delegates to that contractor the duty to provide a safe workplace for the contractor’s employees. This includes any duty to comply with statutory or regulatory safety measures.”
Moreover, held the Court of Appeals, even if the California Code of Regulations and National Fire Protection Association’s standards created an nondelegable duty on the part of Staples, “the plaintiff must show that the breach affirmatively contributed to his injury” and, here, “[t]he absence of a work plan or supervisor did not affirmatively contribute to Khosh’s injuries . . . .”
Conclusion
For general contractors Khosh is a welcomed, albeit, perhaps, not a particularly surprising decision, which highlights the original intent of the Privette doctrine to limit an injured employee’s recovery against a higher-tiered party to situations where the higher-tiered party affirmatively contributed to the employee’s injury.
Be careful out there.
California Construction Law Blog | Nomos LLP 
One Response to “Construction Injuries Under the Privette Doctrine. An Electrifying, but Perhaps Not Particularly Shocking, Story . . .”
[…] for injuries sustained by employees of a lower-tiered party under the peculiar risk doctrine, here, here, here and here. We’ve also talked about some of the exceptions to the Privette […]