The California Privette doctrine, an example of judge-made law, established the general principle that project owners and higher-tiered contractors do not bear liability for worksite injuries suffered by employees of subcontractors. A property owner enjoys a qualified immunity from liability to an injured employee of one of his subcontractors, even if the accident occurred at a worksite he owns.
Exceptions to the Privette Doctrine
Over the last 25 years, California courts have been busy carving out exceptions to the Privette doctrine. The following is a description of some of the major exceptions.
The Retained Control Exception
Under the retained control exception, a defendant higher-tiered contractor (who did not directly hire an injured employee) can be subjected to liability if:
the defendant retained control over part of the work;
the defendant exercised that control in a negligent manner; and
the defendant’s negligence affirmatively contributed to the employee’s injury.
The retained control exception might apply, for example, if a general contractor’s contract with the site owner charged the general contractor with overall responsibility for the safety of the site. The general contractor promised to undertake certain safety measures, the general contractor failed to undertake these measures yet claimed to have done so, and a subcontractor’s employee was thereby injured.
The Non-delegable Duty Exception
Under the non-delegable duty exception, a defendant higher-tiered contractor can be subjected to liability if (i) the defendant was charged with a non-delegable duty; (2) the defendant breached that duty; and (3) the breach affirmatively contributed to the employee’s injury.
So which duties are delegable and which are non-delegable? An owner or contractor can delegate duties that are related to the work specified in his contract with the lower-tiered contractor who hired the injured employee, but generally not other duties. Consequently, the non-delegable duty exception might apply if a property owner fails to repair or provide notice of a concealed dangerous condition on his property, and that condition caused the injury.
Providing Defective Equipment
An owner or higher-tiered contractor can also be held liable for supplying defective equipment to a subcontractor if a malfunction of that equipment caused the injury that the subcontractor’s employee is complaining of.
Why You Might Be Targeted for a Lawsuit
If the Privette doctrine does not apply due to an exception, an injured employee can file a civil lawsuit against an owner or general contractor, as opposed to filing a workers’ compensation claim. The potential advantage in doing so is that the injured employee will become eligible for “pain and suffering” damages, which are not offered in workers’ compensation claims. Pain and suffering damages are often substantial, thereby providing a powerful incentive to sue.
It’s Never Too Early to Seek Legal Advice
If you are concerned about your company’s liability under the Privette doctrine, if an injured employee is attempting to hold you liable for a worksite injury, or if you are attempting to shift liability for a worksite injury to another possible defendant, call CKB Vienna today or contact us online to schedule a meeting with us. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.