California Court of Appeal Finds Possible Liability Under Privette Doctrine of Retained Control

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In a recent opinion, the California Court of Appeal has added to the state's long line of "hirer liability" cases, which the Supreme Court has referred to as "Privette and its progeny." In Tverberg v. Fillner Construction, Inc., 202 Cal. App. 4th 1439 (2012), the Court held that a hirer may be found liable for injuries to an independent contractor who was hired by another subcontractor employed by the hirer, where the hirer's negligence in retaining control over the safety conditions of the worksite affirmatively contributed to the plaintiff's injuries.

In the Tverberg case, defendant general contractor Fillner Construction, Inc. (Fillner) was expanding a commercial fuel facility. Fillner (the hirer) delegated the construction of a metal canopy to one subcontractor, which delegated the work to a second subcontractor, which in turn hired plaintiff Tverberg, an independent contractor, to construct the canopy. Fillner also hired another subcontractor to dig a number of holes close to the work that Fillner was performing. Tverberg fell into one of these holes, injuring himself.

The trial court granted summary judgment in favor of Fillner. The Court of Appeal reversed, holding that Tverberg could go to trial on a theory of retained control, finding sufficient evidence to defeat summary judgment that "Fillner is directly liable for [Tverberg's] injuries because it retained control over the jobsite and itself negligently exercised that control in a manner that affirmatively contributed to Tverberg's injuries." First, Fillner directed another subcontractor to dig the holes and required Tverberg to perform unrelated work near them. Second, Fillner's employee in charge of the worksite determined that stakes and safety ribbons around the holes constituted sufficient worker protection. And finally, when Fillner told Tverberg in response to his complaints that the equipment needed to fill the holes was not available, this constituted an implied promise to cover the holes when the equipment became available.

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