The California Supreme Court Hints at Limiting Exceptions to the Privette Doctrine
July 7, 2021
On June 1, 2021, the California Supreme Court recently heard oral argument regarding an independent contractor’s employee’s recovery against the hiring party (Gonzalez v. Mathis, case no. S247677). During the argument, the Court appeared apprehensive about expanding the exceptions to the Privette Doctrine, in which the employee of an independent contractor cannot recover against a hirer for injuries sustained at a worksite.
In Gonzalez, the defendant hirer owned a residence with a large skylight and an access ladder affixed to the side of the house. The plaintiff cleaned the skylight for roughly 20 years prior to his fall from the access ladder. The plaintiff alleged negligence against the hirer asserting that “loose rocks, pebbles and sand on the roof of the property” constituted a “dangerous condition” that caused the fall.
The trial court granted the defendant summary judgment, holding that the defendant owed no duty to the plaintiff pursuant to the Privette Doctrine. In so ruling, the court held that neither of Privette’s exceptions applied where the hirer did not control the operative details of the plaintiff’s work and the hirer did not affirmatively contributed to the injury.
However, the Court of Appeal reversed and held that Kinsman created a previously unrecognized third exception to Privette’s general rule, under which a hirer is liable in tort “when he or she exposes a contractor (or its employees) to a known hazard that cannot be remedied through reasonable safety precautions.” Finding the “reasonableness of a party’s actions is generally a question of fact for the jury to decide, the court concluded that a hirer cannot avoid trial in a suit seeking damages for injuries sustained by an independent contractor’s employee unless the hirer can “establish as a matter of law that [the contractor] could have remedied [the hazard] through the adoption of reasonable safety precautions.”
Privette Doctrine Generally
The Privette doctrine generally prohibits an independent contractor or his employees from suing the hirer of the contractor for workplace injuries. Under its framework, “[b]y hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract.” SeaBright Ins. Co. v. US Airways, Inc., 52 Cal.4th 590, 594.
The Court has recognized two exceptions to Privette’s rule: (1) when the hirer exercised control over the contractor's work in a manner that had contributed to the injury under Hooker and (2) when the hirer failed to warn the contractor of a concealed hazard on the premises under Kinsman.
The Supreme Court’s questioning indicated it may be leaning toward affirming the trial court and reversing the Court of Appeals’ reading of Privette’s exceptions.
Specifically, Justice Cuellar inquired about when the hirer would be liable in general and stated doubt that the hiring of an inappropriate contractor for a relevant job would create hirer liability.
Chief Justice Cantil-Sakauye further questioned who is in a better position to Determine whether work can be performed safely at a jobsite and indicated reluctance to that require the hirer to make that judgement.
In addition, Justice Corrigan similarly questioned if the Court can adopt a rule that simply says if you have a roof to repair and somebody goes up to do something unrelated to the roof questions, like cleaning the skylight, homeowner owner is liable to everybody.
Justice Cuellar also reaffirmed liability if a hirer increased the risk, but dismissed argument that the property owner assumed the risks of the injury in hiring an independent contractor.
After the hearing, it is anticipated that the Supreme Court will affirm the decision of the trial court, preclude the plaintiff’s claims under the Privette doctrine, and provide more clarity about the scope of the retained control exception.
Leila M. Mohseni is an Associate in the Firm’s Oakland/East Bay office and handles employment, personal injury and products liability defense. She can be reached at (510) 832-7770 or by email at LMohseni@ericksenarbuthnot.com.