As many are aware, the California Supreme Court ruled in Privette v.
Superior Court (1993) 5 Cal.4th 689 ("Privette") that, in general, an employee of
an independent contractor injured in the workplace may not sue the party that
hired the independent contractor for his or her workplace injuries1. In SeaBright
Insurance Company v. U.S. Airways, Inc. (2011) 52 Cal.4th 590 ("SeaBright
Insurance Company") the California Supreme Court considered whether the
Privette rule applies when the party that hired the independent contractor (i.e.
the hiring party) failed to comply with mandatory workplace safety
requirements concerning the precise subject matter of the agreement with the
independent contractor and the injuries were alleged to have occurred as a direct
consequence of that failure. After considering the matter, the California Supreme
Court held that the Privette rule, broadly precluding liability, would apply.
The facts of the SeaBright Insurance Company case are common enough.
In that case, Defendant U.S. Airways, which uses a conveyer to move luggage at
the San Francisco International Airport under a permit with airport owner, hired
independent contractor Lloyd W. Aubry Company ("Aubry") to maintain and
repair the conveyor (US Airways, by virtue of its permit with the airport owner,
was required to maintain and repair the conveyor). In that case, it was alleged
that Anthony Verdon Lujan ("Lujan"), an employee of Aubry, was inspecting the
conveyor as an employee of Aubry when his arm was caught in its moving parts
causing him serious injuries. The SeaBright Insurance Company ("SeaBright"),
Aubry's worker's compensation insurer, paid Lujan benefits based on the injury
and then sued U.S. Airways claiming the airline caused Lujan's injury, and
sought to recover what it paid in benefits on the basis that the conveyor lacked
certain safety guards required by applicable regulations. Lujan also intervened as
a Plaintiff in the action, alleging causes of action for negligence and premises
1 The California Supreme Court in Privette held that the doctrine of peculiar risk afforded no basis for an
injured employee of an independent contractor to recover damages in tort from the hirer of the independent
contractor/employer when the hiring party did not cause the workers' injuries.
At the trial court level, U.S. Airways sought summary judgment based
upon the holding in Privette. U.S. Airways also relied upon the California
Supreme Court decision in Hooker v. Department of Transportation (2002) 27
Cal.4th 198 ("Hooker"), where the California Supreme Court held that the hirer of
an independent contractor can be liable for a workplace injury of the contractor's
employee only if the hirer retained control over the contractor's work, and
exercised that control in a way that "affirmatively contributed" to the employee's
workplace injury. U.S. Airways, arguing both the Privette and Hooker cases,
argued that it did not affirmatively contribute to employee Lujan's injuries.
SeaBright and Lujan countered the Motion for Summary Judgment with a
declaration by an accident reconstruction expert who stated that the lack of
safety guards at "nip points" on the conveyor violated Cal/OSHA regulations
[see, Section 6300, et seq. (Cal Occupational Safety and Health Act of 1973
(Cal/OSHA)), California Code of Regulations, Title 8, §§ 3999, 4002].
The Trial Court struck the Plaintiffs' expert's declaration insofar as it
discussed causation and found no evidence that U.S. Airways had affirmatively
contributed to the accident, and granted summary judgment. On appeal, the
Court of Appeal held that, under Cal/OSHA regulations, Defendant U.S.
Airways had a non-delegable duty to ensure that the conveyor had safety guards
and that the question of whether the airline's failure to perform this duty
"affirmatively contributed" to the Plaintiff's injury remained a triable issue of fact
under the Hooker decision. The Court of Appeal also noted conflicting views
among the Courts of Appeal as to how the holdings in Privette and Hooker
would apply when the hirer of an independent contractor failed to comply with
Cal/OSHA regulations, and the Court followed a line of decisions holding that
such omissions can expose the hirer of the independent contractor to liability.
To resolve the conflicts in the Court of Appeals, the California Supreme
Court granted Defendant U.S. Airways' Petition for Review.
After discussing its opinions in Privette, Toland v. Sunland Housing
Group, Inc. (1998) 18 Cal.4th 253 ("Toland")2, and the Hooker case, as well as the
more recent decision in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 569
("Kinsman")3, the Court ruled that the Privette line of decisions establishes that
an independent contractor's hirer presumptively delegates to the independent
2 In Toland, the California Supreme Court ruled that the Privette no liability rule applied even where the
hirer of the independent contractor failed to specify as part of its contract that the independent contractor
should take special precautions to avert the peculiar risk at issue in the personal injury case.
3 In Kinsman , the California Supreme Court reflected on the strong policy “in favor of delegation of
responsibility and assignment of liability” to independent contractors.
contractor its tort law liability to provide a safe workplace for the contractor's
In its holding, the California Supreme Court rejected the premise that tort
law duty, if any, that a hirer owes under Cal/OSHA regulations to an employee
of an independent contractor is non-delegable.4 Based upon that holding, the
state Supreme Court then ruled that the Plaintiffs could not recover in tort from
Defendant U.S. Airways on the theory that the independent contractor's
employee's workplace injuries resulted from the Defendant's breach of what the
Plaintiffs describe as a non-delegable duty under Cal/OSHA regulations, finding
that there was a presumptive and valid delegation of duties.
The SeaBright decision will certainly have important impacts with
workplace injury cases in the future. One may also anticipate that the plaintiff
personal injury bar may attempt to address the holding with legislative action.
About the Authors: Edward F. Morrison, Jr. is the founding partner and Calvin
C. Schneider is Of Counsel to The Morrison Law Group, a professional
corporation. Their biographies can be viewed at www.morrisonlawgroup.com.
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