|August 29, 2011|
Previously published on August 2011
On August 22, 2011, the California Supreme Court, in a 6-1 opinion, made claims by injured workers against general contractors more difficult. The Court held that the hirer of an independent contractor presumably delegates to the contractor “any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace,” including “any tort law duty the hirer owes to the contractor’s employees to comply with applicable statutory or regulatory safety requirements.” In the construction context, this means that the injured employee of a subcontractor will have more difficulty maintaining an action against the general contractor on the grounds that the general contractor failed to maintain a safe place to work or otherwise violated Cal-OSHA rules or regulations.
In Seabright, defendant US Airways used a conveyor belt system to deliver luggage to and from airplanes at San Francisco International Airport. US Airways contracted with Lloyd W. Aubry Co. to provide preventative maintenance and repair of the system. Plaintiff Anthony Verden Lujan, an employee of Aubrey, was injured when his arm became caught in a conveyor belt that had no protective shields or covers. Seabright was Aubrey’s worker’s compensation carrier, and had sued to recover its payments to Lujan.
US Airways relied on Aubrey for the upkeep of the system, Aubrey provided Verden with all training regarding his work, and no US Airways employees were working on the conveyor belt or in the area at the time of the accident.
US Airways moved for summary judgment at the trial court level based on the Privette - Toland line of cases that imposed liability where the hirer retained operative control of the details of the work and exercised that control in a way that affirmatively contributed to the accident. The trial court granted the motion, concluding that the plaintiff presented no evidence that US Airways affirmatively contributed to the accident. The Court of Appeal reversed, holding that Cal-OSHA imposed nondelegable duties on US Airways to ensure safety compliance on the jobsite.
The California Supreme Court reversed the Court of Appeal, and reinstated the trial court’s decision granting summary judgment. The Court held that by hiring an independent contractor to perform the work, US Airways had presumably delegated any duties that arose regarding a safe workplace for the subcontractor’s employees. Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny eliminated the rule of vicarious liability, ultimately requiring that the hirer of the independent contractor (i.e., the general contractor hiring the subs) to exercise control over the operative details of the work and a showing that such control affirmatively contributed to the injury. In Seabright, there was no showing of control or affirmative contribution.
The California Supreme Court in Seabright examined the line of cases from Privette, Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, Hooker v. Department of Transportation (2002) 27 Cal.4th 198 and others and found these cases relied upon the implicit delegation of the duties associated with a safe workplace for those employees of the subcontractor. The old common law general rule was that a person who hired an independent contractor was not responsible to third parties for the negligence of that independent contractor. However, the general rule was swallowed by the many exceptions, including the peculiar risk doctrine.
US Airways presumed that it owed duties to employees of its subcontractor that are imposed by Cal-OSHA rules and regulations, but argued that by contracting with the subcontractor, it delegated these duties to the subcontractor. The Court of Appeal held that these duties were nondelegable, and therefore reversed the summary judgment. The Supreme Court held these duties were indeed delegable, and that the courts could presume their delegation.
The opinion appears to acknowledge situations where nondelegable duties do arise. The Court acknowledged the distinction “between those Cal-OSHA requirements that arise from the work performed by the independent contractor and those that predate the contractor’s hiring and apply to the hirer ‘by virtue of [its] role as property owner.’”
In a separate concurring opinion, Justice Werdegar agreed with the result, but not the rational. She would uphold the summary judgment solely on the failure of the plaintiff’s proof. She states: “the majority holds that an employer’s duties under Cal-OSHA and the regulations issued under its authority are delegable and, moreover, are presumptively delegated to independent contractors.” However, as she points out, the regulations envision a multiemployer jobsite and impose duties upon a controlling contractor, which she argues, extends to employees of subcontractors. Assuming that a duty may be nondelegable, the distinction between what is presumed to be delegated and what may be considered a nondelegable duty remains unclear from the concurring opinion.
Clearly, the Court’s opinion will be cited in many motions for summary judgment brought by general contractors who are defending lawsuits brought by the injured workers of its subcontractors.
To view the decision, visit http://www.courtinfo.ca.gov/opinions/documents/S182508.PDF