Is a Homeowner Protected by the Privette Doctrine in California for Contractor Injuries?

In the recent California appellate decision in Andrews v. Wagner, Robert Andrews (“Andrews”), an employee of an independent home inspection company, was injured when he slipped and fell while performing his work duties.

He and his wife, Paula Andrews (collectively “appellants”) sued the homeowner, Kathleen Wagner (“Wagner”), now deceased, asserting causes of action for negligence, premises liability, and a derivative claim for loss of consortium.

The trial court granted summary judgment in favor of Wagner on the basis of the Privette doctrine, which holds that an employee of an independent contractor generally may not recover tort damages for work-related injuries from the contractor’s hirer.

Appellants contended the trial court’s order granting summary judgment was erroneous because (1) Wagner failed to meet her burden to establish that she was a “hirer” within the meaning of the Privette doctrine, and (2) there are triable issues of fact regarding the application of the “concealed hazard” exception found in Kinsman v. Unocal Corporation.

Wagner’s homeowners’ insurance company hired Property and Casualty Surveys, Inc. (PCSI) to conduct an inspection of her single-family home for the purpose of identifying hazardous conditions at her property.

Andrews, who was employed by PCSI as an independent field inspector, was assigned to perform the inspection.

His job was to assess the property’s general condition, document safety issues, and identify potential risks regarding structural issues. His duties also included photographing the condition of the home and preparing a written report, which would be used by the homeowners’ insurance carrier to determine renewal rates and levels of coverage.

Andrews had performed thousands of inspections prior to the day of the incident. His job required him to enter unfamiliar environments where he would encounter numerous unsafe conditions. PCSI expected Andrews to use his common sense and safely perform inspections.

On the date of the incident, Andrews arrived at Wagner’s residence, introduced himself, and conducted the inspection of the interior of the home. He then accessed the property’s backyard through the kitchen door, which Wagner closed behind him.

Andrews did not ask Wagner about the backyard and she did not tell him anything about it. Wagner did not exercise any control over Andrews’s work or provide him with any tools or supplies.

Andrews conducted the inspection based on his sole discretion.

In the backyard, there were steps built into the ground made out of wooden railroad ties. Andrews did not specifically look at the steps, but knew they were there “peripherally.” He was admittedly not paying attention to where he was stepping, and as a result, he fell down the stairs and was injured.

Andrews conceded that had he looked down, he would have seen the steps, which were in plain sight, and likely would not have fallen. He did not know what he had slipped on and speculated that it may have been water or moss. He did not inspect the stairs and claimed the only way to do so would have been to get down on his hands and knees.

The weather was sunny and clear at the time of the accident, although Andrews later claimed there were clouds in the sky and that it had rained several hours earlier. Andrews conceded that the condition that allegedly caused his injuries was part of the property he was assigned to inspect.

Andrews received workers’ compensation benefits for his injuries.

Andrews filed a complaint asserting negligence and premises liability against Wagner. Paula also filed a complaint against Wagner seeking damages for loss of consortium, and the two actions were consolidated.

Wagner moved for summary judgment relying upon the Privette doctrine.

Appellants opposed the motion, claiming that Privette did not apply and that issues of fact existed concerning the concealed-hazard exception to Privette because (1) Wagner had allegedly told her gardener 10 years prior to the accident that the steps would sometimes get slippery, and (2) the gardener claimed he occasionally noticed the steps were slippery when wet, they sometimes had moss when damp, and he had warned his workers to be careful of slipping on the ties in wet conditions.

The trial court issued a tentative decision granting the motion in favor of Wagner. At oral argument, appellants argued that Wagner could not avail herself of the Privette doctrine because she did not directly hire PCSI and relied for the first time on Gordon v. ARC Manufacturing, Inc.

After permitting Wagner to file supplemental briefing in response, the trial court adhered to its tentative decision granting summary judgment.

There is a strong presumption under California law that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety. This means that a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job.

There are circumstances in which the strong presumption of delegation under Privette is overcome, for example: (1) when the hirer retains control over any part of the independent contractor’s work and affirmatively contributes to the injury; or (2) when the hirer fails to warn of a known concealed hazard.

Appellants contended the presumption of Privette did not apply because Wagner failed to meet her initial burden of establishing that she was a “hirer,” either directly or indirectly, of PCSI.

The Privette doctrine is concerned with who owes a duty of care to ensure workplace safety—the hirer or the independent contractor—under principles of delegation.

The assumption of risk doctrine asks whether a defendant owes a duty of care where the plaintiff voluntarily assumes the risks of a dangerous activity or occupation.

Here, the trial court found that Wagner readily meets her initial burden of presenting a valid factual basis of applying the Privette doctrine.

In so finding, the trial court rejected appellants’ attempt to defeat the applicability of the doctrine by focusing on the technicality that Defendant was not the one who hired the inspection company but instead it was Defendant’s insurance company who hired the inspection company.

This made practical sense. By paying her insurance carrier for insurance coverage, Wagner had in essence paid for the inspection. And by consenting to allow Andrews to enter her property to carry out the contracted inspection, she delegated to the independent contractor the responsibility for workplace safety.

This falls squarely within the scope of Privette’s policy favoring delegation. Thus, for purposes of analyzing Privette, there is no legal distinction between Wagner and her insurance carrier—both are “hirers” within the meaning of the doctrine.

The California Association of Realtors, as amicus, urged the appellate court to affirm the judgment in favor of Wagner, asserting public policy arguments in favor of applying Privette to all landowners and sellers of residential property as a matter of law.

Based on this record, the appellate court concluded the trial court properly found Wagner met her initial burden of establishing the general application of the Privette doctrine.

Appellants contended that even if Wagner met her burden of establishing that she was a “hirer” within the meaning of Privette, there are still triable issues of fact regarding the concealed-hazard exception to the Privette doctrine that warranted denial of the summary judgment motion.

One of Privette’s underpinnings is the availability of workers’ compensation benefits to the injured employee.  It would be unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for the worker’s on-the-job injuries, is limited to providing workers’ compensation coverage.

When there is a known safety hazard on a hirer’s premises that can be addressed through reasonable safety precautions on the part of the independent contractor, the hirer generally delegates the responsibility to take such precautions to the contractor, and is not liable to the contractor’s employee if the contractor fails to do so.

The rule is different for concealed hazards. This is because a  landowner cannot effectively delegate to the contractor responsibility for the safety of its employees if it fails to disclose critical information needed to fulfill that responsibility, and therefore the landowner would be liable to the contractor’s employee if the employee’s injury is attributable to an undisclosed hazard.

The hirer as landowner may be independently liable to the contractor’s employee, . . . if (1) the landowner knows or reasonably should know of a concealed, preexisting hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor.

Here, there was no evidence that the steps were a concealed hazard or that Wagner knew or should have known that they were unsafe. Indeed, by Andrews’s own admission, the steps were in plain sight, it was his job to be conscientious about the environment, and had he looked down, he likely would not have fallen.

Appellants responded that merely because the railroad tie stairs were visible misses the point. arguing it was the very slippery condition of the railroad ties that made them hazardous.

But there was no substantial evidence to support this contention. Appellants speculated that the stairs were wet or that they had moss on them. But as the trial court properly concluded, a triable issue of fact can only be created by a conflict of evidence, not speculation.

Appellants relied on the deposition testimony of Wagner’s gardener that the steps would sometimes get slippery and that Wagner had warned him about it approximately 10 years ago.

But even liberally construing this evidence, it did not establish that on the day of the incident the steps were slippery or that Andrews—a professionally trained inspector who was there to look for potentially hazardous conditions—could not have reasonably ascertained the condition of the steps.

Finally, there was no evidence to suggest that Wagner had any reason to warn Andrews about the steps on that day. Given that Wagner was an elderly woman with limited mobility issues who used a walker, Andrews was in a far better position to identify potential hazards and take the necessary safety precautions to avoid any injury.

In short, appellants did not establish that the concealed-hazard exception applied.

LESSONS:

1.         There is a strong presumption under California law that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety. This means that a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job.

2.         There are circumstances in which the strong presumption of delegation under Privette is overcome, for example: (1) when the hirer retains control over any part of the independent contractor’s work and affirmatively contributes to the injury; or (2) when the hirer fails to warn of a known concealed hazard.

3.         The Privette doctrine is concerned with who owes a duty of care to ensure workplace safety—the hirer or the independent contractor—under principles of delegation.

4.         The assumption of risk doctrine asks whether a defendant owes a duty of care where the plaintiff voluntarily assumes the risks of a dangerous activity or occupation.

5.         When there is a known safety hazard on a hirer’s premises that can be addressed through reasonable safety precautions on the part of the independent contractor, the hirer generally delegates the responsibility to take such precautions to the contractor, and is not liable to the contractor’s employee if the contractor fails to do so.