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Court of Appeal, Third District, California.

Perry ZEIGER, Plaintiff and Appellant, v. STATE of California et al., Defendants and Respondents.

No. 3 Civ. C019828.

Decided: September 25, 1997

Law Offices of Winchell & Truett, Harold J. Truett, III, San Francisco, for Plaintiff and Appellant. Law Office of Lea & Arruti, Robert Lea and Daniel S. Glass, Sacramento, for Defendants and Respondents.

The State of California and its general contractor, John Otto, Inc., were granted summary judgments in the negligence action filed by a subcontractor's employee, Perry Zeiger.   It is undisputed that plaintiff complained repeatedly to the project manager for the state, the superintendent for the general contractor, the subcontractor's foremen, and even the safety hygienist for the job about the dangerous condition of the scaffolding set up by the subcontractor to perform asbestos abatement.   Plaintiff sustained personal injuries when a plank on the scaffold gave away.

On appeal, defendants maintain the plaintiff's action is barred by Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 wherein the Supreme Court abrogated the peculiar risk doctrine insofar as it imposed liability on a non-negligent landowner who retained no control over the work of an independent contractor and was without fault for injuries sustained by the contractor's employee.   In the trial court, plaintiff conceded that Privette doomed the first cause of action based on peculiar risk.

The issue presented by this appeal is whether the rationale of Privette and its progeny precludes any claims of negligence by a subcontractor's employee against an owner or general contractor if the employee has received workers compensation benefits.   We conclude it does not and shall reverse the summary judgment herein.

Factual Background

We extract the pertinent facts from the moving and opposing papers and the documents and deposition transcripts incorporated into those papers.

The State of California contracted with John Otto, Inc. to renovate the Veterans Affairs Building in Sacramento.   Otto assumed sole responsibility for supervising “all construction means, methods, techniques, sequences and procedures.”   Otto also agreed to initiate, maintain, and supervise all safety precautions and programs and to provide reasonable protection to prevent injury to all employees on the job and all other persons who may be affected thereby.   Otto was obligated to comply with all safety laws, ordinances, rules, and regulations.   It had an affirmative contractual obligation to attempt to prevent accidents.

During the renovation, asbestos was discovered.   Otto subcontracted with Jerry Eaton, Inc. to remove the asbestos on the first, second, fourth, and fifth floors.   Eaton agreed to comply with all health and safety laws and regulations as well as the accident prevention and safety programs of the State and Otto. It assumed sole responsibility for providing a safe place to work for its employees.

Dennis Hazelton, the superintendent for Otto, described Otto's broad responsibility for safety on the job site.   Although he personally bore the ultimate responsibility for safety, his foremen were also trained to provide a safe working environment and his assistant, Eric Alward, conducted weekly safety meetings.   He believed he was responsible for the safety of the subcontractors and their employees on the job site and if he saw a subcontractor create a risk of harm he had the authority to demand alterations or stop work.   Either he or Alward inspected the premises on a daily basis.   Both were certified to enter the asbestos containment areas.

Eaton assembled scaffolding within the containment areas.   Otto did not supply the scaffolding nor assist in the assembly.   Orlando Martinez, the hygienist on the project, monitored the safety of the asbestos work.   He expressed to Dan Maffuccio, the project manager for the state, his concerns about the dangerous condition of the scaffolding.   According to Hazelton, Maffuccio chastised Martinez, contending the safety in the containment areas was none of his business.   Maffuccio insisted that Otto and Eaton shared responsibility for the safety of the workers inside the containment areas.

Martinez also reported his concerns about the rolling scaffolding and the absence of hand rails to Eaton's supervisor on September 24 and 30, on October 6 and 8, and to Dennis Hazelton about one week before the accident.   Hazelton informed Martinez the rails were not compelled because the scaffolding was under seven feet, below the OSHA (California Occupational Safety and Health Administration) minimum standards for hand rails.   Martinez believed there was an exception to the rule cited by Hazelton compelling rails when scaffolding was placed on an unlevel surface.

Plaintiff, at 6-feet 4-inches tall, claims the scaffolding was about 8 feet.   During the two weeks he worked in containment before the fall, he complained repeatedly to Eaton foremen, Otto foremen and the job superintendent, the hygienist, and the project manager from the state.   Plaintiff observed an Eaton foreman take tie wire hanging out of the ceiling, wrap it around the edge of the scaffolding, and hang the plank.   The result, according to plaintiff, was a rickety and unsafe scaffolding.

His many complaints were fruitless.   In response to his warnings about the danger of the scaffolding an Eaton foreman “told me to get the F off the scaffolding and go home if I didn't like it.   And I told him, ‘I don't have a job anywhere else but here.’ ”   The foreman told him to shut his mouth and get to work.   Other foremen issued similar threats.

Plaintiff then complained to Otto's foreman, Eric Alward, about one week before the accident but nothing was done to remedy the danger.   Reviewing pictures plaintiff took of the scaffolding the day following the fall, Hazelton testified at his deposition the configuration was unsafe because it was not set up properly.   Had he seen the scaffolding, he would have immediately stopped all work on the scaffold and he would have ordered it dismantled and erected properly.   Hazelton recounted it was a hazard because of the potential for collapse.

Plaintiff, recognizing the same dangers, attempted to stabilize the scaffolding.   Every time he changed the configuration, Eaton personnel changed it back.   A supervisor finally admonished him that “if [he] kept screwing around with adjusting the scaffolding ․ he was just going to send [him] down the road.”

On the morning of October 2, 1992, plaintiff was standing on a tie-wired plank attempting to take down false ceilings above him.   The plank fell out from under him and he fell to the floor.


 A motion for summary judgment is properly granted only if the papers submitted show there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law.  (Code Civ. Proc., § 437c, subd. (c).)  Since the summary judgment motion raises only questions of law regarding the construction and effect of the supporting and opposing papers, we independently review such papers to determine whether the moving party's papers establish facts to justify a judgment on the issues framed by the pleadings and whether the opposition demonstrates the existence of a triable, material factual issue.  (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064, 225 Cal.Rptr. 203.)

Since plaintiff concedes his first cause of action based on peculiar risk no longer remains viable, the second cause of action for negligence frames the issues.   Plaintiff alleges in pertinent part:  “That at such time and place and prior thereto Defendants, and each of them, so negligently and carelessly owned, possessed, operated, constructed, inspected, maintained, contracted, subcontracted, supervised, controlled, engineered, designed, performed, and planned said remodeling and demolition work and supplied men and materials for the remodeling and construction so as to cause plaintiff to fall and to sustain the injuries and damages complained of.”

 A construction worker injured on the job site is entitled to compensation under the workers compensation system.   By statute, receipt of these benefits comprises the victim's exclusive remedy against his employer, the subcontractor.   Does the availability of workers compensation benefits also immunize the landowner and general contractor for their personal negligence?   The general rule is that when work is turned over to an independent contractor, neither the owner nor general contractor is liable to the contractor's employees for the independent contractor's negligence.   (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 725, 28 Cal.Rptr.2d 672;  Caswell v. Lynch (1972) 23 Cal.App.3d 87, 90, 99 Cal.Rptr. 880.)   The general rule, however, has been eroded by exceptions.   Numerous cases, as well as the Restatement of Torts 2d, raise multiple theories of liability against landowners and general contractors for injuries to employees of independent contractors.  (Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032, 1035, 1040, 43 Cal.Rptr.2d 158;  Whitford v. Swinerton & Walberg Co. (1995) 34 Cal.App.4th 1054, 1055-1058, 40 Cal.Rptr.2d 688;  Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77, 94, 37 Cal.Rptr.2d 457;  Owens v. Giannetta-Heinrich Const. Co. (1994) 23 Cal.App.4th 1662, 1666, 29 Cal.Rptr.2d 11;  Srithong v. Total Investment Co., supra, 23 Cal.App.4th at p. 725, 28 Cal.Rptr.2d 672;  Johnson v. Tosco Corp. (1991) 1 Cal.App.4th 123, 139, 1 Cal.Rptr.2d 747;  Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 273 Cal.Rptr. 457;  West v. Guy F. Atkinson Const. Co. (1967) 251 Cal.App.2d 296, 297-300, 59 Cal.Rptr. 286.)

A landowner has been held liable to a subcontractor's employee on theories of premises liability, peculiar risk, negligent hiring, and control over the operative details of a construction project.  (Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, 232-233, 282 P.2d 69.)   The landowner also has been held vicariously liable based on a nondelegable duty.   (Srithong v. Total Investment Co., supra, 23 Cal.App.4th at p. 726, 28 Cal.Rptr.2d 672.)   Similarly, a general contractor has been liable for its personal negligence in failing to take adequate precautions when peculiar risks are presented, for negligent hiring, and for the failure to exercise due care supervising a project over which it retained some degree of control.   (Caswell v. Lynch, supra, 23 Cal.App.3d at p. 91, 99 Cal.Rptr. 880.)   The general contractor's liability may also be vicarious.  (West v. Guy F. A tkinson Const. Co., supra, 251 Cal.App.2d at p. 300, 59 Cal.Rptr. 286.)

A. Privette v. Superior Court and the Peculiar Risk Doctrine

“Under the peculiar risk doctrine, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor's negligent performance of the work causes injuries to others.   By imposing such liability without fault on the person who hires the independent contractor, the doctrine seeks to ensure that injuries caused by inherently dangerous work will be compensated, that the person for whose benefit the contracted work is done bears responsibility for any risks of injury to others, and that adequate safeguards are taken to prevent such injuries.”  (Privette v. Superior Court, supra, 5 Cal.4th at p. 691, 21 Cal.Rptr.2d 72, 854 P.2d 721.)

Franklin Privette, a schoolteacher, owned a duplex.   He hired a roofer to install a new roof on the duplex, only after verifying the roofer was licensed, was reliable, and carried workers' compensation.   One of the roofer's employees carried hot tar up a ladder at his foreman's request and was injured when he fell off the ladder.   Privette was not present when the injury occurred;  nor did he participate in the foreman's decision to send the victim up a ladder with a five-gallon bucket of hot tar.  (Id. at p. 692, 21 Cal.Rptr.2d 72, 854 P.2d 721.)

In a narrowly crafted holding, the Court restricted the application of the peculiar risk doctrine in California.   The Court wrote:  “When an employee of the independent contractor hired to do dangerous work suffers a work-related injury, the employee is entitled to recovery under the state's workers' compensation system.   That statutory scheme, which affords compensation regardless of fault, advances the same policies that underlie the doctrine of peculiar risk.   Thus, when the contractor's failure to provide safe working conditions results in injury to the contractor's employee, additional recovery from the person who hired the contractor-a non-negligent party-advances no societal interest that is not already served by the workers' compensation system.   Accordingly, we join the majority of jurisdictions in precluding such recovery under the doctrine of peculiar risk.”  (Id. at p. 692, 21 Cal.Rptr.2d 72, 854 P.2d 721, emphasis added.)

The scope of Privette is best determined by understanding the nature of the societal interests the Court was seeking to promote.   When liability is commensurate with fault, a tidy symmetry is achieved:  a victim is compensated and the tortfeasor pays.   But the peculiar risk doctrine as explained in Privette involves two innocent parties, “the person who contracted for the work and the hapless victim of the contractor's negligence.”  (Id. at p. 694, 21 Cal.Rptr.2d 72, 854 P.2d 721.)   Hence, as tort law strains and stretches to achieve its primary objective to provide compensation to innocent victims, a tension arises between the competing societal interests to compensate and to fasten liability on one at fault and, if not at fault, to impose liability upon one who benefits from or controls the injury producing activity.

By enacting a comprehensive no fault system of recovery for work related injuries, the Legislature has assured that the hapless and innocent victim will not be left without recourse.   Consequently, workers' compensation benefits satisfy the fundamental social policy to provide compensation to victims.

It is the equally important societal interest in promoting workplace safety as well as the availability of equitable indemnity, according to Privette, which makes the shifting of liability to a non-negligent party tolerable.   (Id. at p. 695, 21 Cal.Rptr.2d 72, 854 P.2d 721.)   The court believed that by spreading the risk of loss to those who benefit from the hired work there was a greater incentive to provide a safe work place.  (Ibid.) Moreover, the non-negligent defendant, saddled with a tortfeasor's liability, is entitled to recover the damages it was obligated to pay on the wrongdoer's behalf through the vehicle of equitable indemnity.  (Id. at p. 696, 21 Cal.Rptr.2d 72, 854 P.2d 721.)

Workers' compensation benefits, however, upset the symmetry of compensation.   A third party, forced to pay an injured worker as a consequence of either its relationship to the tortfeasor or of its own negligence, cannot pursue an equitable indemnity claim against the negligent employer.   The Supreme Court lamented that inequitable shifting of liability produces the “anomalous result that a non negligent person's liability for an injury is greater than that of the person whose negligence actually caused the injury.”  (Id. at p. 698, 21 Cal.Rptr.2d 72, 854 P.2d 721.)   Although an injured worker is compensated under the workers' compensation system, application of the peculiar risk doctrine before Privette allowed the victim to receive a windfall from the innocent party who hired the tortfeasor but who could not recover from the wrongdoer through equitable indemnity.  (Id. at p. 698, 21 Cal.Rptr.2d 72, 854 P.2d 721.)   The Court concluded the workers' compensation system of recovery “achieves the identical purposes that underlie recovery under the doctrine of peculiar risk:  It ensures compensation for injury by providing swift and sure compensation to employees for any workplace injury;  it spreads the risk created by the performance of dangerous work to those who contract for and thus benefit from such work, by including the cost of workers' compensation insurance in the price for the contracted work;  and it encourages industrial safety.”  (Id. at p. 701, 21 Cal.Rptr.2d 72, 854 P.2d 721.)

In sum, the Supreme Court in Privette, abolished the arcane concept of peculiar risk to avoid doubly compensating a victim at the expense of a non-negligent defendant.   Since the fundamental social policy of providing compensation is achieved by the workers compensation system, the Court found no justification for imposing vicarious liability on one who had hired an independent contractor.  Privette is predicated on an equation which balances the equities of two innocent, non-negligent parties.   It also spoke to the importance of workplace safety, but in the context of two non-negligent parties.   In that circumstance it deferred to the workers compensation system to protect the health and safety of workers.   The Court did not speak, however, to the issue of workplace safety when an owner or general contractor was at fault in allowing an unsafe working condition.1

B. Liability Predicated on Fault:  The Importance of Control

Although a well established body of law involving the liability of owners and general contractors has evolved along with peculiar risk cases, the theories are often confused or intermingled and, therefore, mask the determinative factor in the analysis.   Whatever the theory, the cases turn on an assessment of fault and fault frequently derives from the retention of control.

Hard v. Hollywood Turf Club (1952) 112 Cal.App.2d 263, 246 P.2d 716 and Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, 282 P.2d 69 reach opposite results based on an analysis of control.   In Hard, the court of appeal reversed a judgment against a general contractor because there was no evidence the contractor had any control over the painter or the scaffolding upon which he worked.   The court rejected the notion a general contractor has a duty to act as an insurer of every subcontractor's activities.  (Id. at p. 271, 246 P.2d 716.)   The court wrote:  “The lawmakers must have reflected that to impose the duty upon the general contractor directly to oversee all labor being performed and to inspect every device imported for use by the workmen on a particular construction and to impose nondelegable duties upon him to enforce all statutory safety provisions would be to place an extremely onerous burden upon him who has the general control over the ultimate result of the labor done yet without control or management of the means utilized to achieve the purpose planned.”  (Ibid., emphasis added.)

The Supreme Court distinguished an action against a general contractor or owner for its own negligence from an action based on a subcontractor's negligence in Austin v. Riverside Portland Cement Co., supra, 44 Cal.2d at p. 229, 282 P.2d 69.   The defendant cement company owned and operated a manufacturing plant.   Defendant hired an independent contractor to perform extensive construction work on the plant.   Defendant retained control of its premises and plant, although it had no control over the contractor's employees.   Nevertheless, defendant had an employee on the job.   Its supervisory personnel knew the contractor used large cranes near power lines and often worked at night and it had the authority to have the lines deenergized.   Plaintiff was severely burned when a crane came into contact with an overhead conduit of electricity.  (Id. at pp. 229-230, 282 P.2d 69.)

The Supreme Court explained:  “It is true that California rather than defendant was maintaining the power line, yet defendant had control to the extent that it could have the line deenergized and as it controlled its premises it could provide adequate lighting for night work and proper warnings.   Hence the care required of it must be measured by the hazard inherent in highly charged wires together with the duty it owed to [the subcontractor's] employees who were as to defendant, insofar as it had control of the premises, invitees or business visitors rather than licensees or trespassers;  that their status was invitees is clear.”  (Id. at p. 232, 282 P.2d 69.)   The Court went on to quote section 414 of the Restatement 2d and affirmed the judgment against the defendant based, not on the negligence of its contractor, but for its own breach of duty.  (Id. at pp. 232-233, 282 P.2d 69.)

Cases decided since Hard and Austin also focus on control (See, e.g., Sabin v. Union Oil Co. (1957) 150 Cal.App.2d 606, 310 P.2d 685;  Kingery v. Southern Cal. Edison Co. (1961) 190 Cal.App.2d 625, 12 Cal.Rptr. 173;  West v. Guy F. Atkinson Constr. Co., supra, 251 Cal.App.2d 296, 59 Cal.Rptr. 286;  Johnson v. Cal-West Constr. Co. (1962) 204 Cal.App.2d 610, 22 Cal.Rptr. 492.)  “Ordinarily where an owner or general contractor does nothing more with respect to the portion of the construction job done by an independent subcontractor than exercise general supervision to bring about the satisfactory completion of the job the general contractor owes no duty to assure the safety of the subcontractor's employees and is not liable, therefore, for the subcontractor's torts․  [¶] This does not mean that where the general contractor himself is negligent he is not liable.   The contrary is true.  [Citation.]   But a necessary element of legal negligence is a duty of care.   Therefore the general contractor is liable only when he has assumed and has violated such a duty.”  (West v. Guy F. Atkinson Constr. Co., supra, 251 Cal.App.2d at p. 299, 59 Cal.Rptr. 286.)

In Caswell v. Lynch, supra, 23 Cal.App.3d 87, 99 Cal.Rptr. 880, the court ascribed a duty of care to employers of contractors commensurate with their knowledge and control.  “Certain provisions of the Labor Code [citations] treat employees of subcontractors as ‘employees' of contractors for purposes of imposing liability to provide a safe place of employment, but they do not impose an affirmative duty to supervise safety, and they do not impute to the general contractor knowledge of a negligent subcontractor.   To fasten on a general contractor the duty of supervising and inspecting labor and equipment used is thus to require the general contractor to become, in effect, the safety inspector on the job.  (Hard v. Hollywood Turf Club, [supra,] 112 Cal.App.2d [at p.] 266 [246 P.2d 716][ ].)  In the language of West v. Guy F. Atkinson Constr. Co., [supra,] 251 Cal.App.2d 296, 59 Cal.Rptr. 286 [ ], ‘there is no vicarious liability.’  [¶] We do not read the foregoing authorities as immunizing, however, the general contractor from liability in those cases where the general contractor has himself knowledge, actual or constructive, of a condition hazardous to those who come upon the premises, and such degree of control as permits reasonable preventive or protective measures to be taken by him.”  (Id. at p. 91, 99 Cal.Rptr. 880.)

Courts have failed to clearly articulate the theories of liability and the overlapping roles of the target tortfeasors.   Premises liability has been blurred with peculiar risk, negligent hiring or supervision may be blurred with a nondelegable duty.   But the pivotal factor, whether labeled under a section of the Restatement or as a duty of care under the common law, is control.   Privette is consistent with a long line of authority because the landowner, the school teacher, retained no control over the subcontractor he hired to install a new roof on his duplex.

C. Liability Predicated on Fault After Privette.

Although Privette has been cited in a variety of contexts not relevant here (Doney v. TRW, Inc. (1995) 33 Cal.App.4th 245, 39 Cal.Rptr.2d 292;  Owens v. Giannetta-Heinrich Construction Co., supra, 23 Cal.App.4th 1662, 29 Cal.Rptr.2d 11;  Srithong v. Total Investment Co., supra, 23 Cal.App.4th 721, 28 Cal.Rptr.2d 672), the courts have continued to sustain the viability of subcontractors' employees' negligence actions against owners and general contractors unrelated to theories of peculiar risk.   Moreover, in many of the cases, the courts discuss at length the intricacies and peculiarities of peculiar risk and briefly report the well accepted proposition that all other theories of liability remain intact.

In Smith v. ACandS, Inc., supra, 31 Cal.App.4th 77, 37 Cal.Rptr.2d 457, the court reversed a jury verdict in favor of an injured employee of a subcontractor having concluded that a utility company was improperly held vicariously liable under the peculiar risk doctrine.   The court remanded, however, for a retrial on the utility company's general negligence.  “We have reviewed the entire record, and are satisfied that there was sufficient evidence to find PG & E negligent.   While there was no direct evidence that PG & E knew asbestos's dangers, the jury could conclude that PG & E should have foreseen the dangers given publication of various medical and industrial studies of asbestos diseases and promulgation of industrial safety standards and that PG & E breached its duty to exercise ordinary care in the management of its premises by failing to hire careful and competent insulators or to take other reasonable precautions.”  (Id. at p. 97, 37 Cal.Rptr.2d 457.)   Smith thereby sanctions an action by a subcontractor's employee against the employer of the contractor for general negligence in the aftermath of Privette.

In Felmlee v. Falcon Cable TV, supra, 36 Cal.App.4th 1032, 43 Cal.Rptr.2d 158, a general contractor retained a subcontractor to maintain and repair its cable television lines.   An employee of the subcontractor was injured while working on the lines.   The case went to the jury on general negligence principles and a verdict was returned in favor of the general contractor.   The court acknowledged, “The jury was free to consider whether [the general contractor] was directly negligent in failing to correct any foreseeable, dangerous condition of the cables which may have contributed to the cause of the [worker's] injuries.”  (Id. at p. 1040, 43 Cal.Rptr.2d 158.)

Similarly, in Fire Ins. Exchange v. American States Ins. Co. (1995) 39 Cal.App.4th 653, 46 Cal.Rptr.2d 135, a general contractor's active negligence was at issue as was the landowner's liability under a theory of peculiar risk.   The case involved a fight between the owner's insurer and the general contractor's insurer.

The court wrote:  “Here, the causes of action for negligence and peculiar risk overlapped.   Gebhardt's complaint alleged that the defendants, including Alam, ‘were, and are, the owners, employers, contractors, and/or developers of the project site at which plaintiff, Russell Gebhardt, was injured.’   Alam functioned as a general contractor and personally took charge of the general plan and method of construction.   Gebhardt claimed that Alam refused to provide metal scaffolding and ordered Gebhardt's employer to construct the scaffolding from wood.   Alam supervised the work and visited the job site twice a day.   Attorney Howard Cho, who defended Azam, Alam and Yelvington, opined that Alam had potential liability under the peculiar risk doctrine because he functioned as the general contractor.   As indicated, both the owner of land and a general contractor who hires an independent contractor may have liability pursuant to the peculiar risk doctrine.  [Citation.]  [¶] The court found that ‘Alam Sher, Azam Sher, and Cynthia Yelvington were all at risk of liability in the Gebhardt suit.   Azam and Cynthia had greater exposure than Alam under the doctrine of peculiar risk before Privette.   Alam had greater exposure than they based on active negligence.   All had significant risk of exposure and there was no utility for settlement to allocate their individual contribution to the overall risk.’   The court made an implied finding that the liability of Alam on one hand, and Azam and Yelvington on the other hand, was approximately the same for settlement purposes.   In the exercise of its equitable discretion, the trial court concluded that the umbrella policies should be equally prorated because the policy limits were the same.   This was not an abuse of discretion.”  (Id. at pp. 660-661, 46 Cal.Rptr.2d 135.)

On facts very similar to the facts of the case before us, the court in Whitford v. Swinerton & Walberg Co., supra, 34 Cal.App.4th 1054, 40 Cal.Rptr.2d 688 reached the same result.   The general contractor “bore the responsibility of formulating the work plan and the safety program on the project and ensuring that the workers had a safe workplace.”  (Id. at p. 1055, 40 Cal.Rptr.2d 688.)   It hired a safety officer to maintain safety including compliance with all federal safety regulations.   By contract, the general contractor was obligated to follow all codes and regulations.

The general contractor was aware of one of the subcontractors' practice of lowering the top cable of a safety railing, even though the practice was a safety violation.   The general contractor did not direct any of its employees to investigate the problem or to solve it.  (Id. at p. 1056, 40 Cal.Rptr.2d 688.)   The plaintiff was injured while working near an open and unprotected elevator shaft.

As in the instant case, the injured employee asserted two causes of action, one for peculiar risk and the other for negligence.   A jury found the general contractor was negligent and its negligence was a cause of the victim's injuries.   The jury also found the general contractor was vicariously liable for the subcontractor's negligence under a peculiar risk theory.

The court concluded Privette should be applied retroactively but the decision did not impact the outcome of the case.   Because the trial court had issued a remittitur reducing the damages as compelled by section 1431.2 of the Civil Code (Proposition 51), the judgment was based on the general contractor's negligence, not on any negligence imputed to the general contractor under the peculiar risk doctrine.   The court acknowledged the impact of Privette on peculiar risk cases, but did not expand the rationale to immunize a general contractor for its own negligence.

The Ninth District Court of Appeals is in accord.  (Yanez v. U.S. (9th Cir.1995) 63 F.3d 870.)   Isabel Yanez lost her arm and suffered third degree burns from an explosion at a munitions factory.   After reaching a number of settlements and receiving workers' compensation benefits, Yanez brought suit in federal court alleging the government's negligent inspections and lax enforcement of safety regulations caused her injuries.   The district court granted the government's motion for judgment on the pleadings, but the court of appeals, applying California law, reversed.  (Id. at p. 875.)

The second part of the opinion addresses the issue of control and generates an impassioned dissent on whether Privette applies to Restatement Second of Torts section 414 cases.  “Yanez argues next that because the evidence supports a finding that the United States exercised control over the [munitions contractor's] activities, the district court erred by granting summary judgment to the defendant on her negligent control claim.”  (Id. at p. 874.)   This is precisely the issue now before us.

Yanez presented evidence the government knew of widespread safety violations at the factory but failed to act.   The court concluded the evidence raised the issue whether the government's knowledge gave rise to a duty to order correction, to take corrective action, or to exercise its right to halt the work.   The duty emanated from section 414, a section having nothing to do with the peculiar risk doctrine.

The majority reversed the summary judgment on the control claim based on section 414 without commenting on the applicability of Privette.   The court held:  “In Holman v. State [(1975), 53 Cal.App.3d 317, 124 Cal.Rptr. 773], a California Court of Appeal held that section 414 liability applies where a principal has actual knowledge of a dangerous condition and the authority to correct the dangerous condition. ․ Here, evidence adduced by Yanez indicates that government inspectors may have had actual knowledge of safety violations and the dangers posed by the violations, yet failed to exercise their right to order the contractor to correct them, and if it did not, to order the work halted.   In California, these facts, if true, are sufficient to establish liability under section 414.”  (63 F.3d at p. 875.)

According to Justice Noonan in his dissent, the half-life benevolently bestowed by the majority on the plaintiff's claim for negligent control conflicts with the reasoning of Privette.   Justice Noonan emphasizes the exclusivity of workers' compensation and the inability to obtain equitable indemnity from a negligent employer.   He bemoans the “unwarranted windfall” employees of independent contractors reap by allowing a second recovery after workers' compensation benefits are paid.   Finally, he writes that the person or entity who hires an independent contractor indirectly pays for the cost of workers' compensation through the contract price.  (63 F.3d at p. 876.)

Though Justice Noonan's dissent offers compelling policy reasons for expanding the scope of Privette, it finds little support in the Privette holding.   We agree with the majority in Yanez that a subcontractor's employee's negligence claim against a general contractor or owner survives Privette.

Consequently, with the exception of the two cases pending before the Supreme Court, the remaining cases decided since Privette continue to sustain the viability of negligence cases against general contractors and landowners by injured workers of subcontractors.   The Supreme Court in Privette acknowledged the vicarious nature of peculiar risk liability whether or not it emanated from the owner's or contractor's failure to direct its subcontractor to take special precautions as described in section 413 of the Restatement or its nondelegable duty as described in section 416.   Some confusion has resulted from the use of the word “direct” within the specialized context of peculiar risk.   Perhaps the division of the peculiar risk doctrine in the Restatement between sections 413 and 416 created some of the confusion.   Undoubtedly, by granting hearing in Toland to determine whether a “subcontractor's employee has a cause of action for direct liability against a general contractor or developer,” the Supreme Court will

clarify the semantic confusion evolving around “direct liability.”

D. Conclusion

 For our purposes, in resolving a case which does not involve peculiar risk, we hold that neither the language nor the rationale of Privette or its progeny obliterates any of the long established theories of liability of an owner or general contractor for his independent negligence.   The law both before and after Privette clearly sanctions a cause of action predicated on premises liability, negligent hiring or supervision, or retention of control.   We need only apply that law to the facts before us.

 Here the State is the owner of the premises and its project manager, Dan Mattuccio, was aware of the dangerous condition of the scaffolding.   According to the declarations submitted in opposition to the motion for summary judgment, Mattuccio chastised the site hygienist for raising safety concerns.   Consequently, the State's duties arise as owners of the premises with notice of a dangerous condition.  “The general rule in that regard is that an owner or occupier of premises, who, by invitation express or implied, whether the invitation is pursuant to a written contract or otherwise, induces, or knowingly permits, a workman to enter the premises for the performance of duties mutually beneficial to both parties, is required to use reasonable care to protect the workman by supplying him with a reasonably safe place in which to work and to furnish and maintain appliances in connection therewith which are reasonably safe for the purposes embraced therein.”   (Kingery v. Southern Cal. Edison Co. (1961) 190 Cal.App.2d 625, 632, 12 Cal.Rptr. 173.)

 Plaintiff raises a triable issue of material fact concerning defendant Otto's liability as well.   Otto's superintendent, Dennis Hazelton, testified in his deposition he had responsibility for safety on the jobsite and the authority to demand alterations or stop work.   He, as well as his assistant, were aware of the dangerous condition of the scaffolding.   He testified that if he had seen the scaffolding, he would have immediately stopped all work.   This constitutes evidence Otto retained sufficient control as described in section 414 of the Restatement to give rise to a duty of due care.   Moreover, the notice of the danger triggered a similar duty.   “Acknowledging the origin of the language in precedents dealing with a landowner's duties toward invitees, the court referred jointly to the duties of an owner or general contractor:  ‘An owner or general contractor exercising supervision over a project owes a common law duty to the employees of independent contractors to exercise ordinary care, to furnish them with a reasonably safe place in which to work․’  [Citation.]  [¶] The language is sanctioned by ample judicial precedent applying to a contractor's duty toward employees of a subcontractor, but it has uncertain application, demanding further clarification, with respect to the duty of the employer of an independent contractor toward the contractor's employees.   In a particular case, the language may be consistent with the employer's duties toward the contractor's employees arising from retained control over the work, or, on the assumption that the employer possesses the land on which the work is done, with the duties of a landowner toward invitees.”  (Johnson v. Tosco Corp., supra, 1 Cal.App.4th 123, 139, 1 Cal.Rptr.2d 747.)

Privette embodies a balanced social policy given the interests of two non-negligent parties and the availability of a comprehensive workers compensation system.   The introduction of fault, however, jeopardizes and impedes workplace safety.   This case illustrates why Privette should not be expanded beyond the vicarious liability umbrella of the peculiar risk doctrine.

The deposition transcripts and declarations submitted in opposition to the motion for summary judgment depict a disregard for the safety of the employees on the construction site.   If a jury believes the evidence presented at the hearing on the summary judgment, the subcontractor repeatedly threatened to fire plaintiff for raising safety concerns, the general contractor, although aware that the scaffolding could collapse from improper installation remained indifferent to the imminent danger, and the state, as owner of the premises, knew of the dangers and actively discouraged corrective action.   Unlike the school teacher in Privette, who had no knowledge of the manner in which the job was performed and no control over the contractor's performance, Otto and the state, under the facts adduced by plaintiff, had the authority and the duty to direct the subcontractor to remedy known dangers.

Workers' compensation in a case such as this is an ineffective prophylactic.   Plaintiff sought prevention, not treatment, by lodging complaints with all levels of the construction pyramid.

In this context, neither the inability to collect equitable indemnity nor the inclusion of insurance costs in the contract price outweighs the importance of providing a safe workplace.   In Privette, the landowner's inability to seek indemnity from the subcontractor was inequitable because the contractor was a tortfeasor, whereas the landowner was not;  the landowner's liability was purely vicarious.   In this case, plaintiff seeks only the opportunity to prove the general contractor and owners were themselves negligent.   Hence, plaintiff seeks only to hold defendants liable for their own wrongdoing.

Under defendant's reading of Privette, the general contractor and owner of the premises, though knowingly perpetuating an unsafe workplace, are immunized from liability.   Hence, workers compensation becomes a disincentive to maintaining safe working conditions.  Privette simply does not compel that result.

At trial a jury will determine whether as a matter of fact either the state or Otto breached their duties to the plaintiff.   In reversing the summary judgments, we hold as a matter of law, that Privette does not immunize either the state as owner or Otto as the general contractor from their personal negligence.   The judgments are reversed.   Appellant shall recover his costs on appeal.

I dissent because, in my view, the reasoning of Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 bars an action by the injured employee of a subcontractor against the general contractor who retains and exercises control over the work.

The workers' compensation system imposes statutory liability for injuries caused to an injured worker regardless of fault.   As part of this compensation bargain, the employer, who must provide workers' compensation coverage irrespective of fault, cannot be held personally liable for the injury.   The rationale for this public policy extends to a general contractor, who in effect pays the workers' compensation indirectly via the cost of its contract with the subcontractor.   Because the general contractor pays for workers' compensation coverage as part of the subcontract price, thus insuring that the subcontractor's employee is compensated for work-related injuries regardless of fault, the general contractor should get the benefit of the workers' compensation bargain.   That benefit bars a cause of action against the general contractor for damages based upon its alleged negligence.

Accordingly, I would affirm the trial court's judgment.


1.   Since plaintiff abandoned his cause of action predicated on the peculiar risk doctrine, we need not explore the thorny nuances of “direct” liability as described in section 413 of the Restatement Second of Torts, pages 384 to 385 and “vicarious” liability as described in section 416 (Id., p. 395.)   Suffice it to say a footnote in Privette has spawned a contentious debate.  (Yanez v. U.S. (9th Cir.1995) 63 F.3d 870;  Owens v. Giannetta-Heinrich Construction Co., supra, 23 Cal.App.4th 1662, 29 Cal.Rptr.2d 11.)   The Supreme Court has granted review in Toland v. Sunland Housing Group, Inc. (1995) 49 Cal.App.4th 212, 47 Cal.Rptr.2d 373 “limited to whether, after Privette ․, a subcontractor's employee has a cause of action for direct liability against a general contractor or developer.”  (Review granted 51 Cal.Rptr.2d 84, 912 P.2d 535 (1996) (S050870).)   To the extent “direct” liability refers to the section 413 variation of peculiar risk, it is irrelevant to our disposition of this appeal.   If, however, “direct” implicates other theories of liability predicated on either a landowner or general contractor's personal negligence or fault, then the outcome of Toland might encompass this case as well.

RAYE, Associate Justice.

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