In a Win for Property Owners California Court Expands and Clarifies Privette Doctrine

Victoria Pickering CC BY-NC-ND 2.0

We’ve written before about the Privette doctrine, which generally holds that a higher-tiered party is not liable 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 doctrine, including the non-delegable duty doctrine and the negligent exercise of retained control doctrine, which provide that a hirer cannot rely on the Privette doctrine if it owed a non-delegable duty to an employee of an independent contractor or if it retained control over the work of an employee of an independent contractor and negligently exercised that control in a manner that affirmatively contributes to injuries to that employee.

In the next case, Delgadillo v. Television Center, Inc., Second District Court of Appeals, Case No. B270985 (February 2, 2018), the Court examined whether a property owner could be held liable under the non-delegable duty doctrine and negligent exercise of retained control doctrine for failing to provide structural anchor bolts on its buildings which led to the death of an employee of window washing company.

Delgadillo v. Television Center, Inc.

In Delgadillo, property owner Television Center, Inc. contracted with  Chamberlin Building Services, a licensed contractor, to wash the windows a of three-story building owned by Television Center in Hollywood, California. While washing the building’s windows, Salvador Franco, an employee of Chamberlin fell to his death when his descent apparatus failed. Franco’s wife and children sued Television Center on the ground that Television Center failed to equip the building with structural roof anchors to which the descent apparatus could be attached as required by law.

Television Center filed a motion for summary judgment arguing that the lawsuit was barred under Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny because Television Center did not control the manner in which the work would be performed. In opposition, decedent’s family, citing McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, argued that because the building did not have structural roof anchors, Television Center was liable for providing defective tools or equipment to an employee of Chamberlin. The trial court granted Television Center’s motion finding that Television Center did not retain control over the Chamberlin’s washing of the windows and the structural roof anchors (or the lack thereof) were not “equipment” under the McKown case.

The plaintiffs appealed.

The Appeal

On appeal, the Second District Court of Appeals explained that under common law “a person who hired an independent contractor to perform a task generally was not liable to third parties for injuries caused by the independent contractor’s negligence.” However, the Court noted one exception to the common rule, known as the peculiar risk doctrine, wherein “a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor’s negligent performance of the work causes injuries to others.”

In 1993, the California Supreme Court decided Privette, supra, which held that while employees of independent contractor’s are “third parties,” the peculiar risk doctrine does not apply to injured employees of independent contractors. Since then, several exceptions to the Privette doctrine have been created, two of which, are the non-delegable duty doctrine and the negligent exercise of retained control doctrine.

Under the non-delegable duty doctrine, a party that owes a duty to another party cannot delegate that duty to an independent contractor and later claim that it is not liable for injuries to an employee of that independent contractor because it delegated its duty to that independent contractor. Under the negligent exercise of retained control doctrine a party that retains control over the conditions of the work and negligently exercises that control such that it affirmatively contributes to injuries to an employee of an independent contractor cannot later claim that it is not liable for those injuries.

On appeal, the plaintiffs argued that notwithstanding the Privette doctrine, Television Centers was liable because it had a non-delegable duty to ensure that its building had structural roof anchors and had failed to do so and, further, that by failing to ensure that its building had structural roof anchors Television Centers negligently exercised retained control over the work. The Court of Appeals disagreed.

As to the plaintiff’s non-delegable duty argument, the Court of Appeals explained that under Seabright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, the Supreme Court held that while safety regulations under Cal-OSHA create a duty by a hirer to protect its own employees, it does not prevent a hirer from delegating such duties to an independent contractor with respect to the independent contractor’s employees. Relying on Seabright, the Court of Appeals held that:

1. Safety statutes and regulations, whether under Cal-OSHA or otherwise, can be implicitly delegated by a hirer to an independent contractor with respect to that independent contractor’s employees; and
2. Delegation of that duty properly includes delegation of the duty by an independent contractor to “identify the absence of safety guards” and to “take reasonable steps to address that hazard.”

Thus, held the Court of Appeals, under Seabright “[Television Centers] implicitly delegated to [Chamberlin] its duties under Cal-OSHA and non Cal-OSHA sources to provide a safe workplace for decedent.” (emphasis added).

As to Plaintiff’s negligent exercise of retained control argument, the Court of Appeals explained that under McKown, supra, while a hirer is not liable for injuries to an employee of an independent contractor merely because the hirer retained control over safety conditions, a hirer is liable insofar as the hirer’s exercise of retained control affirmatively contributes to the injuries of an employee of an independent contractor. The Court of Appeals, however, held that McKown was inapplicable because:

1. “[W]hile [Television Centers] arguably ‘provided’ the inadequate anchor points to [Chamberlin], it did not suggest or request that [Chamberlin] use the anchor points to wash the building’s windows. To the contrary, the undisputed evidence before the trial court was that ‘[Chamberlin] and its employees made all decisions as to how the job was to be done.'”; and
2. “Although it is undeniable that [Television Center’s] failure to equip its building with roof anchors contributed to decedent’s death, McKown does not support plaintiff’s suggestion that a passive omission of this type is actionable.”

Conclusion

Delgadillo both clarifies and expands the Privette doctrine by clarifying that a hirer’s “passive omissions” will not give rise to liability for injuries to an employee of an independent contractor, in addition to expanding the protections afforded under the Privette doctrine by holding that safety regulations, whether under Cal-OSHA or otherwise, may be impliedly delegated by a hirer to an independent contractor with respect to that independent contractor’s employees.