California Court Holds Injured Employee Did Not Show Defendant Affirmatively Contributed to Injuries

The California Court of Appeal, Second District, recently addressed the issue of whether an exception applied to the general rule that an independent contractor cannot recover tort damages for work-related injuries from their hirer. In this case, the court found that the employee had not presented evidence that his hirer contributed to his injuries. The court found there were no triable issues of material fact regarding his theory that the retained control exception or nondelegable duty exception applied.

Al Khosh worked for Myers Power Products, Inc., a subcontractor for an electrical project at California State University Channel Islands. Mr. Khosh was injured during the course of his employment and sued the general contractor, Staples Construction, for negligence.

The lower court granted Apple’s motion for summary judgment on the basis that Mr. Khosh did not establish that Staples had control over his work and contributed to his injury. Mr. Khosh argued on appeal that a reasonable jury could find Staples had control over his work and affirmatively contributed to his injury, and Staples breached a nondelegable duty to Mr. Khosh, which resulted in his injury.

On review, the appellate court stated that summary judgment is appropriate if the documents show there is no triable issue of material fact, and the moving party is entitled to a judgment as a matter of law.  The applicable law in this case, set forth in the Privette doctrine, states that employees of independent contractors generally cannot sue the contractor’s hirer for injuries that are work-related.  Those employees are limited to workers’ compensation remedies brought against their employer.

Exceptions to the Privette doctrine include a hirer that retains control over the work.  Here, the appellate court stated that Staples did retain control over safety.  The contract required that Staples keep all of the phases of the work under its control. Staples was made “exclusively responsible” for the safety and health of subcontractors. Therefore, the court held the evidence created a triable issue of fact regarding retained control.

But for a worker to recover under a retained control theory, that hirer must engage in active participation. Affirmative contributions can take the form of directing the contractor in the manner of the work or requiring that it be done in a particular way. Here, Staples’ omissions did not create a triable issue of fact. Mr. Khosh contended that Staples had promised to have a written work plan and to have a superintendent for the work. By breaching these promises, he argued that Staples affirmatively contributed to his injury.

But here, the court argued, Staples had not made specific promises. Furthermore, the court stated Staples did not participate in construction activities, nor did they assist with building the electrical substation.

The evidence did not indicate that Staples affirmatively contributed to Mr. Ghosh’s injury. The court next addressed whether safety regulations imposed nondelegable duties on Staples.  According to the appellate court, the Privette rule applies when the hirer does not comply with safety requirements set forth in the contract.  When a hirer delegates to an independent contractor the duty to provide a safe workplace for employees, this includes the duty to comply with regulatory or statutory safety requirements.

In this case, the regulations applied to specific work, performed on energized conductors or equipment associated with high voltage systems.  But the regulation did not impose nondelegable duties.  If it did, the court stated there must have also been a showing by Mr. Khosh that the breach of a nondelegable duty affirmatively contributed to his injury.

The court affirmed the judgment in favor of Staples.

At Sharifi Firm, our skilled lawyers help victims of workplace accidents throughout Southern California assert their right to compensation. We provide a free, confidential consultation and can be reached by calling 866-422-7222.

More Blog Posts:

California Court Holds Employee’s Negligence Claim Against Employer Barred by Workers’ Compensation Act, Southern California Injury Lawyer Blog, July 5, 2016

California Court Holds State Workers’ Compensation System Provides Injured Employees Ample Opportunity for Review and Does Not Violate State Constitution, Southern California Injury Lawyer Blog, November 17, 2015

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