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A construction worker—employed by a framing subcontractor—who was injured on the job after he fell from an elevated plywood walkway, could not sue the general contractor for his injuries, the California Court of Appeal ruled.
The court concluded that the trial court properly dismissed the worker's claim based on a well-established legal principle in California known as the Privette doctrine. That doctrine holds that, in the absence of its own negligence, the hirer of a subcontractor is generally immune from liability for workplace injury sustained by the subcontractor's employees.
In 2011, Taco Bell hired Crabb Construction Co. to oversee the building of a new Taco Bell restaurant on property it owned in the Redondo Beach area. Crabb, the general contractor, subcontracted the framing for the building to Gilchrist Construction. Walter Ortega was an employee of Gilchrist.
While framing was underway, Gilchrist built an elevated walkway for employees. The walkway consisted of plywood planks placed on top of the roof joists, which were separated by a gap of about 32 inches. The walkway was between 13 and 15 feet off the ground.
On the day of the accident, Ortega was sheathing a portion of the restaurant roof. He alleged that as he tried to cross from one side of the roof to the other using the plywood walkway, one of the planks broke and he fell to the ground, sustaining significant injuries.
Ortega subsequently filed a complaint against Taco Bell, Gilchrist and Crabb, alleging they "negligently owned, operated, controlled and maintained their premises" so as to allow Ortega to fall from the roof.
Before trial, Crabb sought to dismiss the claim against it, arguing that Ortega's claims were barred by the Privette doctrine.
Crabb contended that it did not manage the means or methods that Gilchrist used to frame the building and did not direct Gilchrist to construct the walkway. Further, Crabb asserted it did not provide tools or materials to Ortega, give him instructions regarding his job duties or control any aspect of his actions on the day of the accident. Accordingly, Crabb argued, it could not be liable for Ortega's injuries because it fully delegated the duty to provide a safe workplace to Gilchrist and therefore did not contribute to the accident.
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In opposing the motion to dismiss the complaint against Crabb, Ortega argued that, by virtue of its contract with Taco Bell, Crabb retained control over safety at the building site and contributed to Ortega's accident by negligently exercising that control.
The trial court granted Crabb's motion, dismissing the complaint. Ortega appealed, and the appellate court affirmed the order.
Privette Case and Subsequent Supreme Court Decisions
Under the Privette rule, which arose from a 1993 California Supreme Court case, a general contractor that hires a subcontractor is generally not liable for a workplace injury to the subcontractor's employee, the court noted. However, a series of state Supreme Court cases decided after Privette refined the general rule: The general contractor may be liable for injuries to a subcontractor's employee where the general contractor retained control of the worksite and exercised that control in a negligent manner. In that situation, the state Supreme Court explained, the general contractor would be liable for its own independent negligence, to the extent that negligence caused the worker's injury.
But the appellate court could find no evidence of negligence by Crabb, the building's general contractor. Crabb was not responsible, the court said, for monitoring whether Gilchrist, the subcontractor, had an appropriate fall protection program in place. And even if the site did not comply with safety and health regulations, the general contractor would not be liable for Ortega's injuries. By hiring a subcontractor, Crabb delegated the responsibility to provide a safe workplace to that subcontractor.
Nor was Crabb negligent in failing to correct a hazardous condition by allowing the dangerous walkway to stand because Gilchrist, not Crabb, had control of the worksite. "The mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more" prove negligence on the part of the general contractor, the court concluded.
Ortega v. Crabb Construction Co. Inc., Calif. Ct. App., No. B264837 (May 15, 2017).
Professional Pointer: If a general contractor retains the right to oversee or supervise the work done by a subcontractor at a building site and exercises that right by inspecting the work or giving instructions to the subcontractor, it may risk liability for an injured employee for failing to correct a hazardous condition at the site.
Joanne Deschenaux, J.D., is a freelance writer in Annapolis., Md.
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