As many are aware, under the Privette v. Superior Court (1993) 5 Cal.4th 689 and Toland v. Sunland Housing (1998) 18 Cal.4th 253 ("Privette/Toland") line of cases, hirers of independent contractors are generally not liable for personal injuries sustained by an independent contractor's employees unless the hirer "affirmatively" contributed to the injury suffered by the employee of the independent contractor by either negligently exercising retained control of the work site or breaching a nondelegable legal duty.
In a recent case, commented upon in the September 2016 edition of The Morrison Law Group, Regalado v. Callaghan (2016) WL 5243287 ("Regalado"), the California Fourth District Court of Appeal ruled that the owner of a single family residence, who was also a general contractor, affirmatively contributed to personal injuries to a subcontractor's employee which were caused by an explosion in an underground vault which housed a propane heater for a swimming pool. A primary claim against the hirer in Regalado was that the owner/general contractor did not obtain separate permits for the vault and propane line, nor did he have the County inspect the vault (the owner/contractor also participated in the construction work, including installation of the underground vault). Those omissions resulted in a finding of liability for the owner/general contractor on an omission theory (i.e. the failure to act "affirmatively" contributed to the accident).
However, in a decision published after Regalado - Khosh v. Staples Construction Company, Inc. (2016) 4 Cal.App.5th 712 ("Khosh"), the California Second District Court of Appeal distinguished Regalado finding that summary judgment in favor of a hirer was proper where the employee's claim was based upon a failure to comply with safety laws and regulations (it also ruled that, even if the hirer had retained control, the hirer did not affirmatively contribute to the accident which caused the alleged injury).
In the Khosh case, employee Al Khosh was injured while performing electrical work at a construction project at California State University Channel Islands. He was employed by Myers Power Products, Inc., a second tier subcontractor on the project. Khosh sued the general contractor, Staples Construction Company, Inc. ("Staples") for negligence. The Court granted Staples' Motion for Summary Judgment based upon the Privette/Toland line of cases finding, among other things, that Mr. Khosh failed to establish that Staples' lack of adherence to safety regulations affirmatively contributed to the accident.
The Morrison Law Journal
November 2016
Volume XI, Edition 11
A Win For Entities Which Hire Independent Contractors: Court Of Appeal Rules That
General Contractor's Failure To Comply With Safety Regulations Did Not Amount To
Affirmative Contribution Toward A Subcontractor's Employee's Personal Injury
By: Edward F. Morrison, Jr., Esq.
Larry A. Schwartz, Esq.
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On appeal, Mr. Khosh contended, among other theories, that there was a triable issue of fact as to whether Staples affirmatively contributed to Khosh's injury by failing to follow two safety regulations requiring a work plan (written plan of execution that identifies the person in charge) and a supervisor (where the worker is an employee in training). The Court of Appeal affirmed. As relevant to this article, the Court first ruled that compliance with the safety regulations did not impose nondelegable duties on Staples as they were not exclusive to Staples. In addition, the Court went on to rule that, even if the safety regulations imposed non-delegable duties on Staples, and there was breach of that duty, Mr. Khosh was required to show that the breach by the hirer affirmatively contributed to his injury and ruled that the absence of a work plan or a supervisor (the alleged omissions on the part of Staples) did not affirmatively contribute to Mr. Khosh's injuries.
The Khosh case is important in that it demonstrates that safety regulations may not result in there being a nondelegable duty owed to an employee of an independent contractor (at least where they are not exclusive to the hirer). In addition, the Khosh case demonstrates that the absence of a work plan required for a particular type of work (such as electrical work) or the failure to have an on site supervisor generally mandated by a safety regulation, may not constitute affirmative contribution to injury by the hirer, either.
About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at www.morrisonlawgroup.com.
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