In a significant ruling underscoring the boundaries of liability in workplace injuries involving independent contractors, the California Court of Appeal recently addressed a case stemming from an accident at the San Francisco International Airport. In Bowen v. Burns & McDonnell Engineering Company, Inc., A166793 (San Francisco County Super. Ct. No. CGC17561849), the court found that the retained control exception to the Privette doctrine was not sufficiently proven by the plaintiff.
Eugene Bowen, while working inside a jet fuel tank, suffered injuries after falling from a ladder. At the time, Bowen was employed by Team Industrial Services, Inc. ("Team"), a sub-tier independent contractor engaged by the subcontractor HMT, LLC ("HMT"), and general contractor Burns & McDonnell Engineering Company Inc. ("Burns"). Bowen subsequently filed a lawsuit against HMT and Burns, alleging negligence and negligent supervision under a premises liability cause of action. However, the trial court granted summary judgment in favor of the defendants, citing the Privette doctrine- a legal principle that generally shields those who hire independent contractors from liability for on-the-job injuries. Privette v. Superior Court (1993) 5 Cal.4th 689) Bowen appealed the decision, contending that these were unresolved issues of material fact regarding whether an exception to the Privette doctrine applied. Despite his arguments, the appellate court affirmed the trial court's ruling, reinforcing the limited scope of liability for hirers in such cases.
The Privette Doctrine and Exceptions
The Privette doctrine generally protects a hirer from liability for injuries sustained by an independent contractor or its workers while on the job. Gonzalez v. Mathis, (2021) 12 Cal.5th 29,41. This principle is based on the idea that the independent contractor, who is responsible for managing the work, also assumes the responsibility for ensuring workplace safety. However, the Privette doctrine has several exceptions, including the "retained control" exception. This applies when the hirer retains control over any part of the contractor's work and exercises that control in a way that directly contributes to the worker's injuries. Id. at 42.
For the exception to apply, the hirer must have done more than merely allow an unsafe condition; there must be evidence that the hirer directed the work to be performed in a specific way or interfered with how the work was carried out. "Passively permitting an unsafe condition to occur rather than directing It to occur does not constitute affirmative contribution." Degala v. John Stewart Co. (2023) 88 Cal.App.5th 170. For instance, if the hirer required the contractor to use faulty equipment provided by the hirer, or if the hirer failed to fulfill a promised safety measure, this could be considered an affirmative contribution to the injury. McKowan v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219; Hooker v. Department of Transportation (2002) 27 Cal.4th 198.
Analysis of Retained Control Exception
In the case at hand, Bowen contends that HMT retained control by being contractually responsible for the safety of its subcontractors as well as setting up a ladder and scaffolding for Bowen. The burden was on Bowen to show a triable issue of fact concerning an exception to the Privette doctrine, not on HMT to disprove it. Degala, supra, 88 Cal.App.5th at 166.
The court found that Bowen did not provide sufficient evidence that HMT directed his work or interfered with how it was performed, which is required for the retained control exception to apply. Hooker, supra, 27 Cal.4th at pp.214-215. Instead, the evidence showed that HMT did not require Bowen to use the ladder or scaffolding. In addition, Bowen signed a Job Safety Analysis acknowledging the hazards of entering the fuel tank and other hazards at the worksite. He was also informed that he had the authority to stop work if he deemed it unsafe. Thus, Bowen's argument based on HMT's contractual responsibility for the safety of its subcontractors, did not trigger the retained control exception as there was no evidence that the hirer "affirmatively contributed" to the alleged injuries. The court concluded that Bowen's argument that HMT was contractually responsible for safety was insufficient to invoke the retained control exception without evidence that HMT's actions directly contributed to his injuries.
The Negligent Provision of Unsafe Equipment
Bowen also asserted HMT failed to disprove the existence of a triable issue regarding the negligent provision of unsafe equipment. He claims that the defendants were responsible for his injuries because Team provided materials, such as scaffolding and ladders, and HMT used a safety tag system on its scaffold that he understood as a requirement that he use it. Again, Bowen did not provide evidence that HMT directed his work or told him to use the scaffold left in place for its own employees. In fact, the evidence showed the opposite. HMT had no knowledge that Bowen would use the ladder and scaffold. Further, Bowen stated, "he chose to use the ladder for his own convenience…" The contract clearly states that Team was responsible for supplying its own equipment, and the Job Safety Analysis, which Bowen signed, provided that Team was in charge of its own safety measures. HMT's use of a safety tag system does not imply a request for Team to use its equipment.
In conclusion, Bowen failed to establish a triable issue of material fact regarding the applicability of the retained control exception to the Privette doctrine. For the retained control exception to apply, the hirer must have exercised control over the worksite or work process in a way that directly contributes to the injury. Simply allowing unsafe conditions or having contractual safety obligations was not enough.
Practice Pointers
Document Safety Responsibilities Clearly: Ensure that contracts with independent contractors clearly state that the contractor is responsible for supplying their own equipment and managing workplace safety. This can help reinforce the application of the Privette doctrine.
Avoid Interfering with the Contractor's Work: To minimize liability, hirers should refrain from directing or interfering with the specific means and methods of the contractor's work.
Comprehensive Job Safety Analysis (JSA): Require contractors to sign a detailed JSA acknowledging their responsibility for safety and their authority to stop work if conditions are deemed unsafe. This documentation can be pivotal in defending against claims that a hirer retained control over safety.
Use of Safety Systems: Implementing safety systems, such as tagging or inspections, should not imply that the hirer controls or directs how the contractor uses equipment. Ensure that any safety measures are clearly communicated as part of the contractor's own safety responsibilities.