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Construction Industry News

General Contractor Shielded from Liability for Jobsite Injury to Subcontractor's Employee


March 19, 2001


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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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