For over 20 years, the “Privette Doctrine” has governed the extent of liability that general contractors and property owners have for worksite injuries suffered by a subcontractor’s employees. In Privette v. Superior Court (1993) 5 Cal.4th 689, the California Supreme Court held that “Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work.”

 

The primary rationale for this limitation on an owner’s or general contractor’s liability is that the employee will usually be covered under the subcontractor’s workers’ compensation policy.

Exceptions to Privette

Just as third-party claims may be available for certain workplace injuries notwithstanding the presence of workers’ compensation coverage, courts have carved out exceptions to the Privette Doctrine that allow for claims against owners and general contractors under certain circumstances. Such exceptions include:

 

• claims involving a breach of a non-delegable duty imposed by statute
• claims arising out of injuries caused by defective equipment supplied by the general contractor
• claims based on a failure to warn of a hidden dangerous condition
• where a general contractor retains control over a jobsite in such a manner that it affirmatively contributed to the employee’s injuries.

Duty to Comply With Workplace Safety Rules Falls on Independent Contractors

In 2011, the California Supreme Court refined the Privette Doctrine yet again in Seabright Insurance Company v. U.S. Airways, Inc., 52 Cal. 4th 590 (2011) when it addressed the following question:

 

“whether the Privette rule applies when the party that hired the contractor (the hirer) failed to comply with workplace safety requirements concerning the precise subject matter of the contract, and the injury is alleged to have occurred as a consequence of that failure.”

 

The Court held that a general contractor or other hirer of an independent contractor delegates to the independent 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 Seabright, the injury claim was based on the hirer’s alleged failure to comply with the California Occupational Safety and Health Act (“Cal-OSHA”). Since the duty to comply with the Cal-OSHA regulations was deemed delegated to the independent contractor, no liability could be imposed on the hirer.

 

While Privette and its progeny have done a yeoman’s job of insulating general contractors and owners from a great deal of liability for injuries to a subcontractor’s employees, the exceptions to the doctrine still leave plenty of room for exposure.

Lucas & Haverkamp: San Diego Construction Dispute Law Firm

For over 40 years, Lucas and Haverkamp Law Firm, APC in San Diego has handled construction cases on behalf of contractors, developers and subcontractors. Our representation extends to both residential and commercial construction claims. We help contractors, owners, and subcontractors manage risk and minimize liability associated with construction disputes. Our experience includes construction defects, insurance, breach of contract, change orders, mechanic’s liens, site accidents, stay notices, employment disputes, delay and acceleration claims. We also assist our construction clients with construction contract drafting and risk management issues. Call us today at (858) 535-4000 to discuss your questions and concerns.