What is the Privette Doctrine that Affects Liability for Subcontractor Injuries?
As discussed in the recent California appellate court decision in CBRE v. Superior Court (Johnson), Jake Johnson was injured while working as an electrician on a construction project in a building owned by Property Reserve, Inc. (PRI) and managed by CBRE (collectively, Defendants).
When injured, Johnson was employed by PCF Electric (PCF), a subcontractor hired by Crew Builders (Crew), the general contractor for the project.
Johnson filed a complaint against Defendants, Crew, and PCF for damages.
Defendants moved for summary judgment based on the Privette doctrine, which generally protects entities that hire independent contractors from liability for injuries sustained by employees of the independent contractor while working on a project.
The trial court denied Defendants' motion, finding a triable issue of fact as to when they hired Crew for the project.
In their petition for writ of mandate, Defendants asserted the trial court erred by focusing on the execution date of the written contract, and they asked the appellate court to issue a writ compelling the trial court to grant their motion for summary judgment.
The appellate court agreed that the trial court erred in denying Defendants’ motion for summary judgment because a written contract is not required to invoke the Privette doctrine, and the undisputed facts established that Defendants delegated control over the tenant improvements to Crew prior to Johnson’s injury.
The undisputed facts also established that no exception to the Privette doctrine applied.
Prior to Johnson’s injury, Defendants and Crew mutually agreed to proceed with the project without obtaining permits such that the permitting process was never within the scope of the contracted work.
Because the evidence conclusively showed PCF was able to discover any non- code-compliant wiring itself, even in the absence of permits, the “concealed hazardous condition” exception to the Privette doctrine was inapplicable as a matter of law.
Further, because the decision to forego the permitting process did not affect the means by which PCF and its employees performed the electrical work for which they were hired or the manner in which they ensured their own safety, the “retained control” exception to the Privette doctrine was equally inapplicable.
Because no triable issues of material fact precluded summary judgment, the appellate court granted Defendants' motion.
In Privette, the California Supreme Court recognized the common law principle that a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor’s negligence in performing the work.
The doctrine presumes that the hirer of an independent contractor ordinarily delegates to that independent contractor all responsibility for the safety of the contractor’s workers.
This presumption is grounded in two major principles: first, that independent contractors by definition ordinarily control the manner of their own work; and second, that hirers typically hire independent contractors precisely for their greater ability to perform the contracted work safely and successfully.
Thus, it is generally presumed that a hirer delegates all control over the contracted work, and with it all concomitant tort duties, by entrusting work to a contractor.
However, that presumption gives way to two recognized exceptions: where the hirer withholds critical information regarding a concealed hazard or retains control over the contractor’s work and actually exercises that control in a way that affirmatively contributes to the worker’s injury.
First, to the extent the trial court suggested a written contract was necessary for Privette to attach, the California Supreme Court recently rejected that premise. It explained the doctrine is not based in a contract’s terms but rather in the delegation implicit when a hirer turns over control of the worksite to the contractor to undertake the work, whether by written or informal agreement.
Thus, the nonexistence of a written contract at the time of Johnson’s injury was immaterial.
Undisputed evidence established that Defendants had previously hired Crew, a licensed general contractor, for numerous tenant improvement projects on the property. Defendants and Crew thus had developed an “understanding” that Crew would begin work on projects before a formal contract was finalized.
Defendants asked Crew to immediately start the project in accordance with that understanding.
Crew defined the full scope of the project’s work in its detailed bid and formulated the construction schedule for the project, subject to input from Defendants.
There is no dispute Crew subcontracted all the electrical work for the project to PCF, which began work as a subcontractor, and no dispute that Johnson was working on the project as an employee of PCF on the day of the incident several weeks later.
On this evidence, Defendants hired Crew and implicitly delegated complete control of the worksite, including its safety, to Crew before the date of Johnson’s injury.
LESSONS:
1. A person who hired an independent contractor generally is not liable to third parties for injuries caused by the contractor’s negligence in performing the work.
2. The doctrine presumes that the hirer of an independent contractor ordinarily delegates to that independent contractor all responsibility for the safety of the contractor’s workers.
3. A written contract is not necessary for Privette to attach, because the doctrine is not based in a contract’s terms but rather in the delegation implicit when a hirer turns over control of the worksite to the contractor to undertake the work, whether by written or informal agreement.