What is Difference Between Direct and Vicarious Liability in California?

In the California appellate decision in Brown v. Beach House Design & Development,  Plaintiff Kyle Brown (plaintiff) was severely injured when he fell from a significant height while working as a carpenter at a construction site.

Plaintiff alleged that he fell from defective scaffolding, and he sued the general contractor and the scaffolding subcontractor for negligence.

The trial court granted summary judgment for the general contractor, concluding that plaintiff’s claims against it were barred by exceptions to the peculiar risk doctrine articulated by the California Supreme Court in Privette v. Superior Court and subsequent authority.

The appellate court reversed the judgment.

While Privette and subsequent cases held that a general contractor cannot be vicariously liable for the negligence of its subcontractors, plaintiff’s claim against the general contractor alleged direct, not vicarious, liability.

Further, there were triable issues of material fact as to whether the general contractor fully delegated to the scaffolding subcontractor the duty to maintain the scaffolding in a safe condition.

Defendant Beach House Design and Development (Beach House) was the general contractor responsible for remodeling a residence in Hermosa Beach, California (the property).

Beach House subcontracted with O’Rourke Construction, Inc. (O’Rourke) to do finish carpentry, and with A&D Plastering Co. (A&D) to erect scaffolding and to patch plaster. Plaintiff, a carpenter, was employed by O’Rourke.

O’Rourke’s carpenters, including plaintiff, were on the property to mill, prime, and install window casings. After lunch, while working by himself, plaintiff fell from the north side of the building onto a concrete walkway, suffering severe injuries. It appears that no one saw plaintiff fall, and plaintiff has no recollection of the incident.

After plaintiff’s fall, Jeffrey Strnad, Beach House’s principal, and Alex Daniels, A&D’s principal, inspected the scaffolding above the area where plaintiff fell. They found that some of the scaffolding was not properly secured to the building, and planks, crossbars, ties, and guardrails had been cut or were missing. Both men said the scaffolding was not safe to use in that condition.

Plaintiff sued Beach House for negligence. Plaintiff asserted that he had fallen from scaffolding Beach House had failed to properly maintain, resulting in permanent injuries, substantial medical expenses, and loss of income.

Beach House moved for summary judgment. It asserted that under Privette and its progeny, a general contractor is liable to a subcontractor’s employee for an injury resulting from an unsafe workplace only if the general contractor affirmatively contributed to the conditions that led to the injury.

In the present case, Beach House asserted there was undisputed evidence that it did not supply the scaffolding or any other equipment used by plaintiff, did not control the manner or means by which plaintiff performed his work, and did not take any affirmative act that contributed to plaintiff’s injury.

The scaffolding on the property was provided and installed by A&D, which also did plastering work on the project.

Beach House did not direct the means or methods of the work performed by O’Rourke or its employees, including plaintiff, and it did not provide any equipment or materials to O’Rourke.

Beach House also did not direct the means or methods of the work performed by A&D, and there was no information that Beach House and/or its employees contributed in any way to the purportedly defective railing on the scaffolding, plaintiff’s purported slipping, and/or plaintiff’s purported fall.

Plaintiff opposed the motion for summary judgment asserting there was evidence that Beach House retained control over the safety of the job site through its safety plan and daily walk-throughs, and that Beach House was responsible for procuring and maintaining the scaffolding for the use of its subcontractors and their employees, including O’Rourke and plaintiff.

Alex Daniels, an A&D principal, testified that he and his son Danny were the A&D employees who erected scaffolding and inspected it for safety. Once scaffolding was erected, it was not Daniels’s practice to inspect it daily; Daniels believed daily inspection of the scaffolding was the responsibility of the superintendent or contractors.

A&D did not have an agreement with Beach House about allowing other subcontractors to use the scaffolding, but Daniels never told Beach House not to allow other contractors to use the scaffolding.

The trial court granted the motion for summary judgment, explaining that under Privette, a general contractor is not liable for injuries suffered by a subcontractor’s employee unless (1) the general contractor retained control over the subcontractor’s work and the exercise of control affirmatively contributed to the employee’s injuries, or (2) the general contractor provided unsafe equipment that affirmatively contributed to the subcontractor’s employee’s injury.

In the present case, Beach House provided competent evidence that it did not retain control over how plaintiff performed his work, did not provide equipment to plaintiff, and did not contribute to any purported defect in the scaffolding. In response, plaintiff presented evidence that Beach House maintained a safety plan that included daily walk-throughs, had supervisory responsibility over the job site, and provided the scaffolding.

The court found that plaintiff’s evidence did not establish that any of Beach House’s affirmative conduct caused plaintiff’s injuries because Beach House did not direct the means or methods by which plaintiff conducted his work.

Further, plaintiff’s evidence did not establish that Beach House was responsible for the condition of the scaffolding because plaintiff’s evidence actually confirms that the scaffold was provided by A&D, not Beach House. The court thus concluded that plaintiff had failed to establish that an exception existed to the Privette doctrine.

At common law, a person who hired an independent contractor to perform a task generally was not liable to third parties for injuries caused by the independent contractor’s negligence. Central to this rule of nonliability was the recognition that a person who hired an independent contractor had no right of control as to the mode of doing the work contracted for.

The “peculiar risk” doctrine created an exception to the common law rule that a hirer is not liable for the torts of an independent contractor.

Under the doctrine of peculiar risk, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor’s negligent performance of the work causes injuries to others.

By imposing such liability without fault on the person who hires the independent contractor, the doctrine seeks to ensure that injuries caused by inherently dangerous work will be compensated, that the person for whose benefit the contracted work is done bears responsibility for any risks of injury to others, and that adequate safeguards are taken to prevent such injuries.

The doctrine of peculiar risk thus represents a limitation on the common law rule and a corresponding expansion of hirer vicarious liability.

In its decision in Privette, the California Supreme Court held that the peculiar risk doctrine did not apply to injured employees of independent contractors.

In subsequent cases, the Supreme Court expanded the Privette doctrine to hold that a hirer could not be held vicariously liable to an independent contractor’s employees under a variety of tort theories:

 - Toland v. Sunland Housing Group, Inc. [hirer of an independent contractor not liable to contractor’s employee for failing to specify that the contractor should take special precautions to avert a risk];

 - Camargo v. Tjaarda Dairy [hirer of an independent contractor not liable to contractor’s employee for negligent hiring];

 - Tverberg v. Fillner Construction, Inc. [having assumed responsibility for workplace safety, an independent contractor may not hold a hiring party vicariously liable for injuries resulting from the contractor’s own failure to effectively guard against risks inherent in the contracted work].)

The Supreme Court noted in Kinsman v. Unocal Corp. that a useful way to understand its cases “is in terms of delegation.”

It explained that while an independent contractor generally is presumed to have delegated to a subcontractor the duty to provide a safe workplace for the subcontractor’s employees, when the independent contractor does not fully delegate the task of providing a safe working environment, but in some manner actively participates in how the job is done, and that participation affirmatively contributes to the employee’s injury, the hirer may be liable in tort to the employee.

Most recently, the Supreme Court clarified the exception to the Privette rule in Sandoval v. Qualcomm Inc. There, it reaffirmed that although under its precedents a hirer presumptively delegates to an independent contractor the responsibility to do work safely, the hirer retains a duty of care to the contractor’s employees if it does not fully delegate control to the independent contractor.

To establish that the hirer owes a duty of care to the contractor’s employees, therefore, the plaintiff must establish both that the hirer retained control over the contracted work, and that the hirer actually exercised that retained control in a manner that affirmatively contributed to the contract worker’s injury.

The court noted, however, that neither “actual exercise” nor “affirmative contribution” require that the hirer’s alleged negligence consist of an affirmative act. Instead, the hirer’s negligence may take the form of any act, course of conduct, or failure to take a reasonable precaution that is within the scope of its duty.

If a plaintiff proves that the hirer actually exercised retained control in a way that affirmatively contributed to the contract worker’s injury, the plaintiff establishes that the hirer owed the contract worker a duty of reasonable care as to that exercise of control.

Whether Beach House owed a duty of care to plaintiff turns on whether it retained control over plaintiff’s performance of the contracted-for work and exercised control in a way that contributed to plaintiff’s injuries.

Although plaintiff will have the burden of proof at trial, it was Beach House’s burden on summary judgment to demonstrate the absence of triable issues of material fact as to these issues––that is, that plaintiff cannot prevail on his claim as a matter of law.

The central allegation of plaintiff’s complaint is that plaintiff fell from the scaffolding because Beach House failed to maintain it in a safe condition. Beach House acknowledged in its motion for summary judgment that a general contractor may be liable for providing unsafe equipment to a subcontractor that causes injury to the subcontractor’s employee, but it urged it had no duty to inspect or maintain the scaffolding because it did not supply, control, or assemble it.

It appears undisputed that A&D, not Beach House, supplied and erected the scaffolding. That fact alone is not dispositive of Beach House’s motion for summary judgment, however, because a general contractor may exercise retained control over a job site by requesting a subcontractor to use the general contractor’s own defective equipment in performing the work.

If it does so, the general contractor need not own the allegedly defective equipment to be liable for injuries caused by its use–– instead, under the principles discussed above, the general contractor may assume a duty of care to its subcontractor’s employees if it undertakes to arrange and supply equipment for the employees’ use.

Where a general contractor contracts with a third party to supply equipment for the use of its subcontractors, the contractor’s potential liability to its subcontractors’ employees for defective equipment turns on the extent of the contractor’s delegation to the third party––that is, whether the contractor fully delegated to the third party the duty to maintain the equipment in a safe condition.

If the general contractor fully delegates to the third party the duty to provide safe equipment, the third party is responsible for any failure to take reasonable precautions to keep the equipment in a safe condition. But if the general contractor does not fully delegate the task of providing safe equipment, it may be liable in tort to an employee.

Taken together, the evidence in this action would allow a reasonable jury to conclude that Beach House undertook to provide scaffolding for the use of its subcontractors, including plaintiff.

Even if the subcontract remained in effect, it did not clearly set forth who was responsible for inspecting and maintaining the scaffolding after its installation— that is, during the more than one-year period that the scaffolding remained up on the property.

There are triable issues of material fact as to whether Beach House fully delegated to A&D the responsibility to maintain the scaffolding during the duration of the project.

The Supreme Court has explained that the critical inquiry for purposes of evaluating the exercise of retained control is the relationship between the general contractor’s conduct and the subcontractor’s conduct, not whether the general contractor’s conduct, assessed in isolation, can be described as affirmative conduct.

That is, neither actual exercise nor affirmative contribution requires that the general contractor’s negligence consist of an affirmative act.

The general contractor’s negligence may take the form of any act, course of conduct, or failure to take a reasonable precaution that is within the scope of its duty.

Under this standard, were a jury to conclude that Beach House assumed a duty to provide scaffolding for the use of O’Rourke employees and that it failed to fully delegate to A&D the duty to maintain the scaffolding in a safe condition, it could also reasonably conclude that Beach House’s alleged failure to inspect and maintain the scaffolding gave rise to liability.

Accordingly, there were triable issues as to whether Beach House exercised retained control in a manner that affirmatively contributed to plaintiff’s injury.

LESSONS:

1.         A general contractor cannot be vicariously liable for the negligence of its subcontractors.

2.         Under the doctrine of peculiar risk, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor’s negligent performance of the work causes injuries to others.

3.         Neither “actual exercise” nor “affirmative contribution” require that the hirer’s alleged negligence consist of an affirmative act. Instead, the hirer’s negligence may take the form of any act, course of conduct, or failure to take a reasonable precaution that is within the scope of its duty under Hooker.

4.         If a plaintiff proves that the hirer actually exercised retained control in a way that affirmatively contributed to the contract worker’s injury, the plaintiff establishes that the hirer owed the contract worker a duty of reasonable care as to that exercise of control.

5.         Whether a general contractor owed a duty of care to the plaintiff turns on whether it

retained control over plaintiff’s performance of the contracted-for work and exercised control in a way that contributed to plaintiff’s injuries.

6.         If the general contractor fully delegates to the third party the duty to provide safe equipment, the third party is responsible for any failure to take reasonable precautions to keep the equipment in a safe condition. But if the general contractor does not fully delegate the task of providing safe equipment, it may be liable in tort to an employee.