Subject to two exceptions discussed later, under California law a landowner is not liable to an independent contractor who is injured due to safety issues on the jobsite. In a recent case, Gonzalez v. Mathis,1 the California Supreme Court addressed a new potential exception to the rule:
If there is a known hazard on a property that the independent contractor cannot remedy or protect against through the adoption of reasonable safety precautions, and the contractor or one of its workers is injured after proceeding to do the work anyway, is the landowner liable in tort?
The Court concluded that the landowner is not liable in that situation.
The Facts
The defendant owned a one-story house with a large skylight over an indoor swimming pool.2 The plaintiff owned a window washing company and had been regularly cleaning the defendant's skylight for years.3
Due to the roof's setup, the defendant was required to walk along a 20-inch-wide path between a parapet wall and the edge of the roof to get close enough to the skylight to clean it.4 On the occasion giving rise to this case, the plaintiff slipped while walking along the path, fell off the roof, and suffered serious injuries.5
The plaintiff subsequently filed a lawsuit against the defendant, claiming that the roof's dangerous condition caused his fall.6 The plaintiff claimed that: (1) a lack of roof maintenance made the roof very slippery, (2) the roof did not contain tie-off points to which he could attach a safety harness, (3) the roof did not have a guardrail or safety wall, and (4) the path used to access the skylight was too narrow.7
The trial court granted the defendant's summary judgment motion and dismissed the lawsuit, and the California Supreme Court affirmed.8
The Court's Analysis
The California Supreme Court has adopted what it refers to as the Privette doctrine.9 Under that doctrine, "a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job."10
Four rationales support the doctrine: (1) hirers generally do not have the right to control the independent contractor's work; (2) in setting a contract price, contractors can factor in the cost of safety precautions and insurance; (3) workers' compensation generally covers on-the-job injuries; and (4) contractors are experts in their fields and should be able to perform their work safely.11
Prior to the present case, the California Supreme Court had recognized two exceptions to the Privette doctrine.12 First, "a hirer may be liable when it retains control over any part of the independent contractor's work and negligently exercises that retained control in a manner that affirmatively contributes to the worker's injury."13 Second, "a landowner who hires an independent contractor may be liable if the landowner knew, or should have known, of a concealed hazard on the property that the contractor did not know of and could not have reasonably discovered, and the landowner failed to warn the contractor of the hazard."14
As noted above, the plaintiff argued the Court should adopt a third exception for situations where an independent contractor is injured by a known hazard that he or she cannot protect against using reasonable precautions. The Court rejected that argument, holding that the plaintiff's proposed exception would be inconsistent with the "strong presumption that a hirer delegates to an independent contractor all responsibility for workplace safety."15 Accordingly, the plaintiff was responsible for determining whether he could safely navigate the defendant's roof, and the defendant was not liable for the injuries the plaintiff suffered when he fell.16
Lessons Learned
California contractors should assume that they, not the building owner, will be responsible for workplace safety on their projects. To the extent possible, workplace safety issues should be identified before the contractor signs the contract so that it can take any issues into consideration in pricing the job. If a contractor encounters a safety issue in the middle of the job, it should understand that if the issue cannot be mitigated and the contractor proceeds anyway, it likely does so at its own risk.
Although building owners might be comforted by the result in this case, they should be aware of the two exceptions discussed above where the owner can be liable for contractor injuries. They should also keep in mind that the Court expressly declined to address whether "a hirer's response to a contractor's notification that the work cannot be performed safely due to hazardous conditions on the worksite might give rise to liability." It is possible the owner might be liable for injuries if, for example, the owner unduly pressures the contractor into proceeding with the work even after the contractor says it cannot be performed safely.
FOOTNOTES
1 Gonzalez v. Mathis, 12 Cal.5th 29, 493 P.3d 212 (2021).
2 Id. at 39.
3 Id.
4 Id.
5 Id.
6 Id. at 40.
7 Id.
8 Id.
9 Id. at 37-38.
10 Id.
11 Id. at 38.
12 Id.
13 Id.
14 Id.
15 Id. at 45.
16 Id. at 56-57.
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