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By
John W. Ralls
Thelen Reid Brown Raysman & Steiner LLP
An ironworker who worked for a first-tier subcontractor
fell from scaffolding and was injured. The ironworker sued
the general contractor. The crux of the ironworker's suit
was that the general contractor negligently failed to require
the subcontractor to provide adequate fall protection.
The
general contractor filed a motion for summary judgment.
The parties agreed for purposes of the summary judgment
motion that the general contractor had the right to order
any safety means or measures that it felt were appropriate.
It also was undisputed that the general contractor did not
give the plaintiff any instruction as to how to perform
his work. The trial court granted the general contractor's
motion, and the Court of Appeal affirmed. Kinney v. CSB
Constr., Inc., 2001 Daily Journal DAR 1124 (Cal.App.
2001)
The
issue presented was whether the California Supreme Court's
decisions in Privette v. Superior Court, 5 Cal.4th
689 (1993) and Toland v. Sunland Housing Group, Inc.,
18 Cal.4th 253 (1998) barred the plaintiff's claim.
The
analysis of Privette and Toland starts with
Chapter 15 of the Second Restatement of Torts, "Liability
of an Employer of an Independent Contractor," which
consists of a general rule (§409) and a host of exceptions
(§§410 to 429). Section 409 states: "Except
as stated in §§410-429, the employer of an independent
contractor is not liable for physical harm caused to another
by an act or omission of the contractor or his servants."
Privette
involved a personal injury claim by the employee of a prime
contractor against an owner. The employee's claim was based
on the theory of peculiar risk (Restatement §416 -
liability of hiring person for peculiar risks when independent
contractor fails to take precautions against such risks).
In Privette, the court held that when the injured
employee of an independent contractor has recovered a worker's
compensation award from the contractor, the hirer of the
contractor cannot be held liable under the peculiar risk
doctrine because of the availability of worker's compensation
benefits. "[T]he property owner should not have to
pay for injuries caused by the contractor's negligent performance
of the work when workers' compensation statutes already
cover those injuries."
Toland
involved a personal injury claim by the employee of a subcontractor
against the general contractor. The employee's claim was
based on a different branch of the theory of peculiar risk.
(Restatement §413 - liability of hiring person who
fails to provide for special precautions against peculiar
risks). The Toland court found the same rationale
applied to bar the plaintiff's claim.
The
plaintiff-ironworker here argued that his cause of action
was viable under the rule set forth in §414 of the
Second Restatement of Torts. (The Toland court expressly
reserved whether its rationale would apply to claims brought
under §414.) Section 414 provides, "One who entrusts
work to an independent contractor, but who retains the control
of any part of the work, is subject to liability for physical
harm to others for whose safety the employer owes a duty
to exercise reasonable care, which is caused by his failure
to exercise his control with reasonable care."
The
court observed that the general contractor's site manager
retained the right to eliminate or abate safety hazards
and to direct subcontractors to suspend or change their
work practices when they were working unsafely. "Here
the evidence was sufficient to at least raise a triable
issue of fact as to whether [the general contractor] retained
sufficient control to trigger section 414."
The
court nonetheless concluded that under the reasoning of
Privette and Toland, the plaintiff's claim
was barred. "We are persuaded that the holdings of
Privette and Toland should also apply to employees'
claims under section 414 at least where, as here, (1) the
sole factual basis for the claim is that the hirer failed
to exercise a general supervisory power to require the contractor
to correct an unsafe procedure or condition of the contractor's
own making, and (2) there is no evidence that the hirer's
conduct contributed in any way to the contractor's negligent
performance by, e.g., inducing injurious action or inaction
through actual direction, reliance on the hirer, or otherwise."
The
plaintiff also argued that violations of jobsite safety
regulations constitute negligence per se by virtue of the
1999 amendments to Labor Code §6304.5. The plaintiff
argued that Labor Code §6304.5, as amended in 1999,
provides that in a jobsite injury case, evidence of relevant
safety regulations may be introduced to establish the standard
of care. The plaintiff contended that there was substantial
evidence of negligence per se because there was evidence
that the general contractor failed to require use of fall
prevent devices, in violation of applicable safety regulations.
The
court rejected the plaintiff's analysis on the ground that
it confused breach with duty. "The presumption of [Evidence
Code] section 669 operates only to establish a lack of due
care. The threshold issue is whether the defendant owed
the plaintiff a duty of due care with respect to the hazard
giving rise to his injuries." The court cited a number
of opinions for the proposition that the doctrine of negligence
per se does not create a duty of care but rather creates
a means by which breach of the duty of care may be established.
" 'The presumption of negligence created by Evidence
Code section 669 concerns the standard of care rather than
the duty of care,' " citing Rosales v. City of Los
Angeles, 82 Cal.App.4th 419, 430 (2000).
Because
the court had already held under the rationale of Privette
and Toland that the general contractor did not owe
the plaintiff a duty of care, the court rejected the plaintiff's
argument based on Labor Code §6304.5.
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For more information about the issues covered in this report, please contact John Ralls in our San Francisco office at 415-369-7210 or at jralls@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
©2001 Thelen Reid Brown Raysman & Steiner LLP
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