Since 1993, the Privette doctrine has governed the liability of general contractors and property owners in California for worksite injuries sustained by their subcontractor’s employees. Defendants often use the Privette doctrine as a cudgel against plaintiffs who are injured while working on defendant’s premises. While, “[g]enerally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work” (Seabright Ins. Co. v. U.S. Airways, Inc. (2012) 52 Cal. 4th 590, 594, citing Privette v. Superior Court (1993) 5 Cal. 4th 689), over the past decades, California courts have begun to poke holes in the Privette doctrine, allowing plaintiffs to proceed with their negligence and premises liability claims past summary judgment.
Direct Negligence Of Defendant
Plaintiffs can first overcome the Privette doctrine by avoiding it completely. Privette and its progeny are based on the presumption that the hirer of an independent contractor automatically delegates to that contractor the responsibility to perform the specified work safely. (See SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590.) However, if the hirer is directly negligent (and not negligent under the peculiar risk doctrine or other theory that would be considered various liability), the Privette doctrine does not apply, and the hirer can be found liable. For example, if the plaintiff is able to cite to a statute or regulation, such as Cal-OSHA, which the hirer violated, the defendant may be negligent per se under California Evidence Code §669(a)(1).
The Two Exceptions To The Privette Doctrine
Additionally, the California Supreme Court has identified two exceptions to the Privette doctrine – retained control and concealed hazard. If circumstances of the case fall within one of these exceptions, a plaintiff can overcome a motion for summary judgment.
First, under Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, an exception to Privette exists where a landowner knows of a dangerous condition, the contractor could not reasonably discover the dangerous condition, and the landowner fails to warn the contractor of the dangerous condition. (Id. at 664.) In Kinsman, Unocal hired an independent contractor to perform scaffolding work at a refinery. (Id. at 665.) Unbeknownst to the plaintiff, other workers unaffiliated with his employer had removed insulation from pipes and machinery which contained asbestos. (Ibid.) The plaintiff breathed the asbestos, which caused him to develop cancer. (Ibid.) Because the asbestos was a dangerous condition which the plaintiff could not have reasonably discovered, the California Supreme Court found that this constitutes an exception to the Privette doctrine. (Id. at 684.)
Second, the Hooker v. Department of Transportation (2002) 27 Cal.4th 198 exception applies where the hirer retains control over any part of the independent contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the worker’s [or contractor’s] injury.” (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 38, citing Hooker v. Department of Transportation, 27 Cal.4th 198, 202.) Neither ‘actual exercise’ nor ‘affirmative contribution’ requires that the hirer’s negligence (if any) consist of an affirmative act. The hirer’s negligence may take the form of any act, course of conduct, or failure to take a reasonable precaution that is within the scope of its duty under Hooker. (Brown v. Beach House Design & Development (2022) 85 Cal.App.5th 516, 534.) Our Supreme Court has explained that the critical inquiry for purposes of evaluating the exercise of retained control is the relationship between the general contractor’s conduct and the subcontractor’s conduct, not whether the general contractor’s conduct, assessed in isolation, can be described as ‘affirmative conduct.’ (Ibid.)
McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219 is an example of the “retained control” exception, where a hirer of an independent contractor negligently furnishes unsafe equipment to the contractor. (Id. at 225.) In McKown, defendant Wal-Mart provided the independent contractor/employer an unsafe forklift that injured the plaintiff/employee. (Ibid.) The hirer’s affirmative contribution to the employee’s injuries eliminates any “unfairness in imposing liability where the contractor is primarily at fault.” (Ibid.)
Other Issues That May Affect The Applicability Of The Privette Doctrine
The Privette doctrine only applies if the party was hired as an independent contractor, and was licensed and insured.
Labor Code Section 2750.5 creates a “conclusive presumption of employee status for an unlicensed contractor” which “is dependent upon only one factor-failure to secure the requisite license.” (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 331; see also Chin v. Namvar, (2008) 166 Cal.App.4th 994, 1004.) Therefore, if the contractor (plaintiff’s employer) is not licensed, they are not an independent contractor of the defendant, and the Privette doctrine does not apply.
Additionally, the Privette doctrine is based “principally [on] the availability of workers’ compensation” to injured employees under California’s Workers’ Compensation Act. (Kinsman, supra, 37 Cal.4th at 671.) Under the Act, “all employees are automatically entitled to recover benefits for injuries ‘arising out of and in the course of the employment.’ ” (Privette, supra, 5 Cal.4th at 696-697, citing Lab. Code, § 3600, subd. (a).) In relying on the availability of workers’ compensation to limit hirer liability, this Court has determined that the Workers’ Compensation Act achieves many of the purposes underlying tort recovery by contractors’ employees against hirers: “[it] ensures compensation for injury by providing swift and sure compensation to employees for any workplace injury; it spreads the risk created by the performance of dangerous work to those who contract for and thus benefit from such work…; and it encourages industrial safety.” (Privette, supra, 5 Cal.4th at p. 701.) Under the Workers’ Compensation Act, moreover, an employee injured in a work-related accident is also assured of obtaining benefits “regardless of fault,” thus assuring that injured employees will be compensated for their injury. (Id.) “When an employee of a contractor is injured, and the contractor is unlicensed and uninsured at the time of injury, the injured employee’s recourse may be against not only the contractor, but also against the landowner who hired the contractor as an additional employer.” (Vebr v. Culp (2015) 241 Cal.App.4th 1044, 1051-52.)
If the independent contractor did not have any workers compensation or any insurance under which the plaintiff could recover for the extensive medical bills he incurred due to his injuries, and defendants admit they do not have insurance available for plaintiff’s injury, the public policy concerns behind the Privette doctrine are not applicable here, and plaintiff should not be precluded from receiving compensation for their injuries.
Thus, although the Privette doctrine imposes a burden on plaintiffs who suffer workplace injuries, California courts have carved out several ways for plaintiffs to overcome defendants’ motions for summary judgment.
