by Hillary H. Huth (San Francisco Office)

CaliforniaWhat duty of care do premises owners owe to employees of independent contractors hired to perform work at their sites?

Pursuant to a line of California cases, a premises owner who hires a contractor is, with certain exceptions, immune liability for injuries to an independent contractor's employee.  So, if an employee of an independent contractor is injured on the job, his or her remedy is through the employer's Workers' Compensation insurance, and not in an action against the premises owner.

The California Supreme Court recently affirmed that one who hires an independent contractor delegates to that contractor the duty to provide a safe workplace for the contractor's employees in Seabright Insurance Company v. US Airways, Inc., 52 Cal.4th 590 (2011).  In the Seabright case, the employee of an outside contractor hired to repair a luggage conveyor at an airport was injured in the course of his work inspecting the conveyor.  The plaintiffs in the case claimed that the lack of safety guards on the conveyor violated the Cal-OSHA regulations, and that such safety guards would have prevented the injury.

luggage_conveyor_airportThe California Supreme Court found that US Airways was not liable to the employee of the outside contractor, and that no non-delegable duty was imposed under the OSHA regulations.  Although US Airways could not delegate its duties to its own employees under the OSHA regulations, US Airways did delegate its duty to ensure workplace safety to the outside contractor as to its employees.craneThe Seabright decision relied heavily on the Court's decision in Privette v. Superior Court (1993) 5 Cal.App4th 689, which held that employees who are injured at work generally cannot sue the person who hired their employers.  In the Privette case, a property owner hired a roofing company, and an employee of the roofing contractor was injured by hot tar used to work on the roof.  The Court noted that Workers' Compensation provided the exclusive remedy for the employee's injuries. 

Additionally, in Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, the California Supreme Court held that an independent contractor's hirer is not liable in tort actions even if the contractor himself (rather than the contractor's employee) is the one injured in the workplace.  In the Tverberg case, the independent contractor was injured on the job, but was not entitled to Workers' Compensation benefits as the owner of his own business.  Nonetheless, since the independent contractor has the authority to determine the manner in which the work is performed, he assumes legal responsibility for carrying out the work, including the responsibility for workplace safety precautions. 

However, the hirer of an independent contractor can be liable for a workplace injury of the contractor's employee if the hirer retained control over the contractor's work in a way that "affirmatively contributed" to the employee's injury as discussed in Hooker v. Department of Transportation (2002) 27 Cal.4th 198.  The Hooker case involved a workplace injury in which a crane operator employed by a general contractor hired by the California Department of Transportation (Caltrans) to construct an overpass was killed when the crane he was operating tipped over.  In that case, the California Supreme Court found that the hirer of an independent contractor could be held liable if it retained control over the jobsite and exercised that control in a way that affirmatively contributed to the worker's injury. 

HHH--headshot-web-nameThe Seabright case is another in a line of court decisions defining the scope of protection afforded premises owners who hire contractors.  Owners who are concerned about the extent of protection enjoyed when a contractor is hired and what to avoid in order to keep that protection should consult counsel before entering in to the contract.

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