June 15, 2012 (Orange, CA)  On June 12, 2012, the case of Brannan v. Lathrop Construction Associates, Inc. was certified for publication and shall serve the construction industry by further protecting general contractors from liability for construction site injuries.

In Brannan, the plaintiff Brian Brannan ("Brannan") was an employee of a masonry subcontractor that sued the general contractor Lathrop Construction Associates, Inc. ("Lathrop") for injuries he sustained after slipping on wet scaffolding.  Brannan alleged that Lathrop was negligent in sequencing and coordinating construction at the site, and failing to call a "rain day" to protect workers from dangerous conditions caused by slippery surfaces.  With respect to the sequencing and coordinating allegations, Brannan argued that he was forced to work in and around scaffolding that prevented and blocked access to his work.  Lathrop successfully sought summary judgment in Contra Costa County Superior Court under the Privette-Toland doctrine.  The Privette-Toland doctrine generally holds that employees of independent contractors cannot sue the party that hired the contractor to do the work because the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor's employees to ensure the safety of the workplace.

On appeal, Brannan argued that Lathrop's act of scheduling the masonry work and permitting the scaffolding to remain in place was an affirmative act of retained control that contributed to the accident that would subject Lathrop to liability under the exception to the Privette-Toland doctrine established in Hooker v. Department of Transportation.  Under Hooker, a contractor may be subject to liability for acts or omissions that affirmatively contribute to employee injuries.  The Court of Appeal disagreed with the application of the Hooker exception to the facts of this case.  Specifically, the Court noted that it was undisputed that Lathrop did not direct Brannan's work, and did not tell Brannan to gain access under the scaffolding in the manner he did.  The Court also stated that Lathrop's failure to call a "rain day" was also unavailing because undisputed evidence was presented that Brannan's employer had independent authority to call a "rain day" without Lathrop's approval.

Finally, the Court provided some guidance on the analysis of future cases, wherein it suggested a different result might occur if the subcontractor or one of its employees had asked the general contractor to remove the scaffolding for safety reasons and in response the general contractor agreed to do so and then failed to perform.

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