The court clarified the parameters of torts-premises liability.
There is long-established precedent that a prime contractor is not liable for injuries to an employee of its subcontractor. This is known, in California, as the Privette doctrine. However, if the prime contractor supervises or otherwise retains control of a subcontractor’s employees the prime contractor may be liable.
The primary issue of fact is, as David Blinn asserts in his article in lowball.com, whether the prime contractor “retains control of workplace safety and ‘affirmatively contributes to the employee’s injuries.’”
In Al Khosh v. Staples Construction Company, the California Court of Appeal for the Sixth Appellate District examined this issue.
Staples Construction Company was hired by California State University Channel Islands “to install a backup electrical system at the University.” The contract between the owner and the contractor required that a superintendent be on the jobsite at all times. Staples was “exclusively responsible” for the safety of the employees of its subcontractors.
Khosh was an employee of a second-tier subcontractor who made arrangements directly with the University to work in an electrical substation without Staples knowledge prior to the scheduled shut-down of the facility. He was badly injured while performing his work. “Staples did not have any personnel at the university at the time.”
Khosh filed suit claiming that Staples had control of the jobsite. Staples refuted this claim and filed for summary judgment. The trial court granted the defendant’s request. The Court of Appeal affirmed the lower court’s decision. “It cited several cases for the proposition that merely because there was a general promise to be ‘responsible’ for ‘site safety,’ or ‘all safety precautions,’ the failure to take action was not an affirmative contribution to the plaintiff’s injury.”
Evidence demonstrated that Staples did not take part in the work performed by Khosh when he was injured and did not directly contribute to the accident.
Mr. Blinn states that “this case confirms that even in the face of non-delegable safety duties, a plaintiff will still have to show an ‘affirmative contribution’ to the injury by the hirer to escape the Privette bar on suits against owners/contractors by employees of a subcontractor.”
Torts-Premise Liability, David Blinn, lowball.com (Low Ball & Lynch), Dec. 7, 2016.