Getting Around Privette v. Superior Court: An injured employee can prevail against the hirer, general contractor or premises owner in a third-party case

It’s common knowledge that Privette v. Superior Court (1993) 5th Cal.App.4th 689 bars an injured employee of a contractor from prevailing in a third-party case against the hirer, general contractor or premises owner based on the fact there is worker’s compensation coverage and the employee should not be permitted a double recovery. Privette abolished the Peculiar Risk Doctrine where defendants were previously exposed to liability for vicarious liability based on the negligence of someone else—usually the employer of the injured person. Privette also abolished negligence of the hirer for negligent hiring of the negligent employer. However, there are exceptions and state-of-the-art tactics to avoid the drastic bar of Privette in order to impose liability on the hirer, general contractor and premises owner.

The most important exception to Privette is the “negligent exercise of retained control doctrine” as espoused in Hooker v. Department of Transportation (2002) 27 Cal.App.4th 198. Essentially, a hirer, general contractor or premises owner can be liable for the contractor’s employee’s injury if they retained control of the work and in some manner affirmatively contributed to the injury. Retained control is subject to a vast array of interpretations based upon the facts and circumstances giving rise to the injury. Retained control is some active participation in the means, methods, manner or performance of the work. The hirer must have made some contribution to how the work was to be accomplished. For example, the hirer may have procedures to follow, or may have monitored and enforced procedures. This is active participation in the means and methods of performing the work.

Retained control or active participation is not only an act by the hirer, etc., but can also consist of an omission or failure to act. See Hooker Fn 3, pg 212. The failure to provide safety devices and safeguards can amount to retained control that affirmatively contributes to the injury. The context of the published cases in this area of law has to be fully understood because the cases are not in the same context and are distinguishable based on the facts.

The doctrine of negligent exercise of retained control pertains to how the work is performed and safety procedures.  There are other areas of liability that are subject to the same rationale as in Hooker. For example, if the hirer, etc. furnishes equipment, tools, implements, or anything tangible used in the performance of the work and the equipment is defective, it constitutes active participation in the performance of the work.  McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal. App.4th 219.

The question of whether the hirer, etc. is liable to the injured employee because of unsafe conditions on the premises is also subject to the Hooker rule.  Mere retention of control of the premises is not enough.  There has to be a causal connection between retained control and the affirmative contribution to cause the injury.  See Sheeler v. Greystone Homes, Inc. (2003) 113 Cal.App. 4th 908; Ruiz v. Herman Weissker, Inc. (205) 130 Cal.App.4th 52, 63.  Failure to take safety precautions will suffice as long as the risk of injury is foreseeable.  It does not matter that the dangerous condition was obvious.  Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 121-122.

The defense will likely claim that Seabright v. US Airways (2011) 52 Cal.App.4th 500 applies to defeat Hooker because the hired contractor becomes responsible for the safety of its employees. Seabright presumes that the hired contractor was delegated directly or indirectly the authority to determine how the work should be safely performed. The Seabright case is distinguished from other worksite injury cases. For example, in Seabright, the hirer, US Airways did not own the conveyor that needed work and for which it hired a contractor. There were OSHA regulations that applied to working on the conveyor which the Supreme Court said was directly or indirectly delegated to the hired contractor. But under Hooker, if the hirer retains control, it cannot be said that the hirer delegated the authority over safety. If a hirer does not fully delegate the safety aspects of performing the work but retains control in a negligent matter and actively participates in how the work is done or provides unsafe equipment or unsafe premises, the hirer is nonetheless liable for its own negligence. Seabright did not overrule Hooker.

The hirer, general contractor or premises owner is liable for its direct negligence. To establish its direct negligence, depositions need to be taken immediately of third-party defendant employees to gather the facts of retained control and active participation before the defense fully understands the legal theories. Depositions of co-employees need to be taken immediately to support these theories. Written discovery should be sent only to gather the names and job titles of all the key persons you will want to depose and to produce the key documents that you need such as photographs of the premises and machinery, contracts, Owner’s and Operator’s Manuals, OSHA reports and evidence of subsequent remedial conduct.

Defendants want to ignore the fact that after the accident they remedied the deficient safety practices, the dangerous equipment and the unsafe premises. Defendants will claim that subsequent remedial conduct is not admissible pursuant to Evidence Code 1151. This is only true if that evidence is being used to prove negligence. However, subsequent remedial conduct can be used to prove that the hirer, general contractor or premises owner had a duty to make it safe and was in control of the procedures, equipment or premises involved in the accident. Alpert v. Villa Romano Homeowners Assoc. (2000) 81 Cal.App.4th 1320; Ault v. International Harvestor Co. (1974) 13 Cal.3d 113, 118.

If you have workers’ compensation cases where an employee of a contractor sustained serious injuries on a jobsite or premises, call us. We will conduct a preliminary review and analysis of the case to see if it is a worthy candidate to go forward with. If so, we will file a lawsuit and conduct discovery needed to posture the third-party case correctly. We are able to settle most of these cases because we highlight the risk of loss to the defendants. Do not let Privette stop you from picking up the phone or emailing us.


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