Brian Brannan, et al. v. Lathrop Construction Associates, Inc.
Court of Appeal, First District (June 12, 2012)
This case is the latest decision limiting the liability of a general contractor for jobsite injuries suffered by an employee of a subcontractor.
Plaintiff Brian Brannan (“Plaintiff”) was a journeyman bricklayer, working for Bratton Masonery (“Bratton”) at the El Cerrito High School construction site. Defendant Lathrop Construction Associates, Inc. (“Lathrop”) was the general contractor for the project, and hired Bratton to perform masonry work at the site.
Lathrop hired another subcontractor, M. Perez Company, Inc. dba Henley & Company (“Henley”), to perform plaster work on the site. Lathrop’s subcontract agreements required each of the subcontractors (Bratton and Henley) to comply with all federal and state safety requirements, to comply with Lathrop’s safety procedures, and to maintain a safety program on the construction site. Lathrop was in charge of coordination of the work on the site, and had the authority to stop any subcontractor’s work for a safety issue. Each subcontractor also had the authority to stop its own work for a safety issue.
In coordinating and sequencing the subcontractor work, Lathrop determined that Henley would perform the plastering work and then remove its scaffold before Bratton started the masonry work. However, Henley left a portion of the scaffold in place at the request of a third subcontractor. On the day of the incident, Bratton’s employees, including Plaintiff, were working in an area where the scaffolding was located, and it was raining. Bratton’s foreman did not have safety concerns about the rain on the day of the incident, or about Bratton employees working around the scaffold.
Plaintiff slipped on the wet scaffolding and sustained injuries. At the time, he was trying to gain access to the area underneath the scaffold to lay a brick veneer. Plaintiff sued Lathrop, alleging causes of action for negligence and premises liability.
Lathrop successfully moved for summary judgment. The trial court ruled that while Lathrop was responsible for scheduling and coordination and had authority to order the scaffolding removed, no issue of fact was presented to establish that Lathrop exercised control “in a way that affirmatively contributed to Plaintiff’s injuries.”
On appeal, Plaintiff argued that Lathrop (1) scheduled the work, (2) permitted the scaffold to remain in place, and (3) did not stop the work because of rain. According to Plaintiff, each of these raised triable issues of fact as to whether Lathrop “affirmatively contributed” to Plaintiff’s injuries.
The Court of Appeal affirmed the trial court’s ruling. Under the Privette-Toland Doctrine, an employee of an independent contractor cannot recover from the party that hired the independent contractor. As the Supreme Court has noted, when a party hires an independent contractor, it delegates tort liability owed to the independent contractor’s employee to the independent contractor.
The doctrine is underscored by the workers’ compensation system. If an employee of an independent contractor is injured on the job, workers’ compensation is available to remedy the injury. No additional remedy against the party that hired the independent contractor is necessary. Workers’ compensation also protects the independent contractor from liability to the injured employee. Therefore, it would be illogical and unfair to subject the hiring party to greater liability than the independent contractor, as the independent contractor has greater control over the injured employee.
An exception to this general rule was described in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, where the general contractor affirmatively contributed to the injuries of an independent contractor’s employee. The court in Hooker held that retaining control over safety conditions was not a sufficient basis for liability on its own. Liability is only appropriate when the hirer is directly liable for the injury as a result of its own affirmative behavior, and not merely vicariously liable for the acts of the independent contractor.
Applying the Privette-Toland Doctrine and the holding in Hooker to the present case, the Appellate Court found that Lathrop’s scheduling of the work and permitting the scaffold to remain raised no triable issue of fact. Lathrop did not direct Bratton or Plaintiff, and Bratton never requested that the scaffold be removed. Merely failing to exercise the power to compel safer procedures does not, without more, constitute an affirmative act supporting liability. Furthermore, Lathrop did not have knowledge of the specific safety issue causing injury to Plaintiff. The failure to call a rain day is also insufficient. Lathrop’s authority to stop work was not exclusive, and Bratton had authority to call a rain day on its own.
This case clarifies the general rule of non-liability for the hirer of an independent contractor and gives much needed guidance in determining what constitutes “affirmative contribution” to establish liability. The Appellate Court strengthened the doctrine’s protection of general contractors by limiting the scope of its exception: artful pleading cannot transform authority to act into an affirmative act causing injury. Retaining control over safety conditions, without more, does not subject a general contractor to liability, as long as it is not exclusive control.
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