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Liability of Employer of Independent Contractor/Peculiar Risk
Peculiar risk liability will not be imposed on a general contractor for injury to the employee of a subcontractor even where the subcontractor is without worker's compensation insurance at the time of the injury.
In
Bell vs. Greg Agee Construction, Inc. (2004) 125 Cal.App.4th 453, 23 Cal.Rprt.3d 33, plaintiff was injured on a construction site when he fell from a wall. He was employed by a subcontractor which did not have worker's compensation coverage at the time of the accident. Plaintiff sued his employer and the general contractor. The subcontractor declared bankruptcy. The general contractor successfully moved for summary judgment on the ground there was no evidence that it affirmatively had contributed to Bell's injuries. Plaintiff unsuccessfully contended that the lack of worker's compensation insurance at the time of the accident would allow for application of the peculiar risk doctrine. The Court of Appeal disagreed, noting that plaintiff could pursue a worker's compensation claim with the Uninsured Employers Fund. The legislature intended that the employer bear the cost of the industrial injury. Here, the Uninsured Employers Fund would become subrogated to plaintiff's claim and eventually be able to collect from the employer. Since plaintiff had access to worker's compensation coverage, he could not pursue a claim against the general contractor unless he could establish an affirmative contribution on behalf of the general contractor to his injury.
Privette precludes recovery by an employee for injuries under a theory of premises liability unless the entity who hired the plaintiff’s employer had control of the dangerous condition and affirmatively contributed to the plaintiff’s injury.
In
Sheeler vs. Greystone Homes, Inc. (2003) 113 Cal.App.4th 908, 6 Cal.Rptr.3d 683, the injured employee of a subcontracting tile company brought an action against the general contractor after he had tripped on debris while climbing stairs at the construction site. Plaintiff received worker’s compensation benefits following the accident. Plaintiff contended that the general contractor had exercised control over the work site by scheduling the stairs where he tripped to be swept at regular intervals during the construction process. The Court of Appeal held that the scheduled clean ups did not constitute affirmative control over the hazard which caused the plaintiff’s injuries. Plaintiff argued that since the general contractor was in control of the premises it had a nondelegable duty to maintain the premises in a safe condition. The Court of Appeal determined that applying the nondelegable duty rule to the theory of premises liability could not be reconciled with the rule stated in Privette vs. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, which would only allow recovery under these circumstances if the general contractor had affirmatively contributed to the employees injury. Here, there was no evidence that the general contractor had actual knowledge of the debris on the stairway over which the plaintiff had tripped.
Peculiar risk doctrine does not allow the employee of a subcontractor to sue the property owner where the property owner has failed to ascertain whether the subcontractor had worker's compensation insurance.
In Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430, 124 Cal.Rptr.2d 227, a subcontractor's employee brought a personal injury action against the property owner after the employee was injured while working on a construction project. The property owner retained the ability to control safety conditions. The employer of the plaintiff did not provide worker's compensation insurance. The Court of Appeal found that the failure of the owner to ensure that the subcontractor had worker's compensation insurance did not exempt the plaintiff from the general rule limiting recovery to worker's compensation.
Penalizing the owner for the subcontractor's wrongdoing in carrying insurance was determined to be contrary to equity in public policy. The owner had no duty to ascertain whether the subcontractor was properly insured. It was also noted that the employee did have worker's compensation coverage available to him through the uninsured employer's fund.
The hirer of an independent contractor may not be held liable for injury to an employee unless the hirer's exercise of retained control over the job site affirmatively contributed to the employee's injuries.
In the case of Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 115 Cal.Rptr.2d 853, the widow of a deceased employee of an independent contractor sued CALTRANS after her husband's crane toppled over, causing him to fall to his death. The Court acknowledged that the plaintiff had presented evidence raising a triable issue of material fact as to whether CALTRANS retained control over safety conditions at the worksite. Nonetheless, summary judgment in favor of CALTRANS was affirmed based upon the Court's determination that the plaintiff had failed to introduce evidence from which it could be inferred that CALTRANS exercise of retained control over the worksite affirmatively contributed to the accident.
The hirer of an independent contractor may be held liable for an injury to the employee where it has provided defective equipment to the contractor.
In the case of McKown v. Wal-mart Stores, Inc. (2002) 27 Cal.4th 219, 115 Cal.Rptr.2d. 868, the California Supreme Court affirmed a judgment on jury verdict, which allocated some fault to the hirer of the independent contractor for the accident.
In this case, the independent contractor was requested by the defendant to use the defendant's forklifts whenever possible in performing the work. The plaintiff was injured while using one of the defendant's forklifts. The Supreme Court held that when the hiring party actively contributes to the injury by supplying defective equipment, it is the hiring party's own negligence that renders it liable, not that of the contractor. Where the hirer's own conduct affirmatively contributes to the happening of the accident, the hirer can be found liable.
Homeowner can be held liable to injured employee of unlicensed independent contractor.
In Fernandez v. Lawson (2002) 98 Cal.App.4th 388, 119 Cal.Rptr.2d 767, the Appellate Court reversed summary judgment in favor of the defendant homeowner who had been sued by a worker injured while trimming a palm tree in the homeowner's yard. The homeowners had hired a tree trimming service to trim a 50-foot tall palm tree at the residence. Plaintiff contended that because his employer was unlicensed as a matter of law he would be considered an employee of the defendant homeowners. Plaintiff further contended that the homeowners would be responsible vicariously for his employer's failure to follow California Occupational Safety and Health Act Regulations (OSHA) related to the trimming of the tree.
The Appellate Court found that OSHA Regulations could be applied to homeowners who retain independent contractors to perform work requiring a professional license without confirming that the independent contractor has such a license. The Court also noted that if the independent contractor had affirmatively misrepresented the status of his license, the employee would thereby be estopped from claiming he was an employee of the homeowners. If it is determined that the plaintiff was an employee of the independent contractor only, then the independent contractor and not the homeowners would be responsible for making sure the work was done in compliance with OSHA Regulations unless it were proven that the homeowners exercised control over the details of the work.
Employer of independent contractor cannot be held liable to employee of independent contractor on a theory of "negligent hiring".
In the case of Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 108 Cal.Rptr.2d 617,
the California Supreme Court has again narrowed the circumstances under which the employee of an independent
contractor may sue the employer of the Independent Contractor for injuries sustained on the
job. In this case the employee of the independent contractor was killed when a tractor he
was using rolled over. A wrongful death claim was made by the decedent's wife and children
alleging that the defendant Dairy was negligent in hiring the independent contractor for
whom the decedent worked because it failed to determine whether the decedent was qualified
to operate a tractor safely.
The California Supreme Court determined as a matter of policy that it is unfair to impose
liability on the employer of a contractor where the contractor's liability is limited under
the worker's compensation system. Thus, the employee of a contractor is barred from seeking
recovery from the hirer under the theory of negligent hiring.
An employee of an independent contractor cannot pursue a claim for injuries against the hirer of the independent contractor under the doctrine of Peculiar Risk.
In the case of Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d. 72, a
landmark decision by the California Supreme Court reversed prior case law, which held that
an employee could seek recovery for injuries sustained on the job from the person who hired
his employer under the Peculiar Risk doctrine. Under the Peculiar Risk doctrine a person
who hires an independent contractor to perform work that is inherently dangerous can be held
liable for damages when the contractor's negligent performance of the work causes injuries
to others, including the employees of the contractor. California had long permitted
employees of independent contractors to pursue injury claims against the person who hired
the independent contractor under this doctrine.
Under Privette where the injuries resulting from an independent contractor's performance
of inherently dangerous work are to an employee of the contractor, and thus subject to
worker's compensation coverage, the doctrine of Peculiar Risk does not provide a basis for
the employee to seek recovery of damages from the person who hired the contractor but did
not cause the injuries.
The peculiar risk doctrine (Restatement 2d Torts §§ 413, 416),
which serves to ensure a source of tort recovery for innocent
bystanders or neighboring landowners injured during the course
of inherently dangerous work performed by an independent contractor,
does not apply to the employees of the contractor; their only
remedy is a workers' compensation claim according to the California
Superior Court in Toland v. Sunland Housing Group, Inc. (1998)
18 Cal.4th 253, 74 Cal.Rptr.2d 989.
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