Subcontractor's Foreman Attacked at Construction Site Can Sue General Contractor, Site Owner

​A building foreman who was attacked and seriously injured by unknown assailants while working at a construction site could proceed with his lawsuit seeking damages from the general contractor and the owner of the site, even though the foreman was employed by a subcontractor, a California appeals court ruled. The foreman claimed the owner and contractor had breached their duty to take reasonable security precautions at the site, which was in a high-crime area.

The trial court dismissed the lawsuit before trial, agreeing with the contractor and owner that the claims were barred by the Privette doctrine, which provides that the hirer of an independent contractor is not liable for on-the-job injuries sustained by the contractor's employees unless some exception applies. The court rejected the foreman's claim that the defendants could be liable to him under the Hooker exception to the Privette doctrine. That exception applies when the hirer retains control over any part of the contractor's work and exercises that control in a way that affirmatively contributes to the plaintiff's injury. The foreman appealed.

When the foreman was injured, he was working on a project involving the rehabilitation of 27 buildings containing residential units. The site owner hired a general contractor, which then hired subcontractors, including the foreman's employer, a company that performed demolition work at construction sites.

The project began in late 2015, and the foreman was attacked in January 2017. From the start of the project, the owner and the general contractor had weekly meetings about site security and made joint decisions. At first, two uniformed security guards patrolled the site during the day, but their services were eventually discontinued when an outside company was hired to provide cameras that were monitored offsite during nonworking hours.

Fencing was built around the jobsite for the safety and security of personnel and property. Multiple shootings had occurred in the area, and workers were instructed to stop work before sundown and to stay indoors for lunch and breaks.

The site was closed several times out of concern for worker safety in the weeks leading up to the attack. The foreman was injured when he was leading a crew working on two buildings that were split by a sidewalk, which was left open so the neighborhood residents could use it to access a bus stop. Ordinarily, the general contractor's practice was to completely fence off an entire area under construction, but due to the residents' concerns, one section was left unfenced. Three men got through the fencing and into the building where the foreman was working, then followed him out of the building to the walkway and attacked him. They fled and were never identified.

Application of Privette Doctrine

Under the Privette doctrine, a hirer or landowner is ordinarily not liable for injuries to contract workers. The Hooker exception to the doctrine applies when the hirer retains control over any part of the contractor's work and exercises that control in a way that affirmatively contributes to the plaintiff's injury.

The foreman claimed the site owner and general contractor retained control over site security, saying there were issues of fact as to whether they exercised their retained control in a manner that affirmatively contributed to the attack in which he was injured. Therefore, the trial court should not have dismissed the lawsuit before trial, he argued.

The appeals court noted that a hirer retains control where it keeps a sufficient degree of authority over the manner of performance of the work entrusted to the contractor.

A hirer actually exercises its retained control over the contracted work when it involves itself in the work in such a way that the contractor is not completely free to do the work in its own manner.

A hirer's exercise of retained control is an "affirmative contribution" if it contributes to the injury independently of the contractor's contribution to the injury.

The hirer's negligence need not be an affirmative act, the court explained. It may take the form of any act, course of conduct or failure to take a reasonable precaution that is within the scope of the hirer's duty.

Applying these principles, the appeals court ruled that the trial court erred in dismissing the lawsuit before trial.

There was evidence that the defendants retained control over site security by providing security guards and installing cameras.

There was also evidence that the defendants exercised that control over the subcontractor's employees because they eliminated overtime and gave instructions to stop work before sundown and to stay indoors for lunch and breaks. Therefore, the subcontractor was not free to perform the work in its own manner.

Finally, factual questions remained as to whether the measures the defendants took in removing the guards and allowing the fence to be open in one area contributed to the foreman's injuries.

Degala v. John Stewart Co., Calif. Ct. App., No. A163130 (Feb. 7, 2023).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.