As many are aware, in California, the hirer of an independent contractor is not liable for personal injuries suffered by an employee of an independent contractor for a worksite accident unless the hirer has affirmatively contributed to the injuries suffered by the employee of the independent contractor. See, Privette v. Superior Court (1993) 5 Cal.4th 689 and Toland v. Sunland Housing (1998) 18 Cal.4th 253. An issue that has arisen over the years is whether a hirer of an independent contractor that retains control of safety conditions at the work site has "affirmatively" contributed to an accident by virtue of an "unsafe condition" at the worksite. In that regard, the Court in Hooker v. Department of Transportation (2002) 27 Cal.4th 198 ruled that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor in the event that the hirer’s exercise of retained control affirmatively contributed to the employee’s injuries.1
In Regalado v. Callaghan (2016) WL 5243287 ("Regalado"), the California Court of Appeal, Fourth District provided further guidance as to the affirmative contribution "exception". In Regalado, defendant Callaghan, a licensed concrete subcontractor, desired to build a dream home in the Coachella Valley. Callaghan acted as an owner/builder for the project. After obtaining a building permit for the house, Callaghan did the concrete work himself and hired a licensed subcontractor to complete the work. Callaghan was hands on. Callaghan thereafter planned to have a contractor by the name of Canyon Pools build a pool and spa, but in order to minimize noise, Callaghan wanted to have the pool equipment installed in an underground vault. A vault was constructed that had a hole on top for entry and exit.
1 The argument for liability is that the liability to the hirer is not "vicarious or derivative" in the sense that it derives from the accident or omission of the hirer contractor, but is direct liability. See, Brannan v. Lathrop Construction Associates, Inc. (2012) 206 Cal.App.4th 1170.
Callaghan's property did not have natural gas service, so he had to hire a plumbing subcontractor to run propane lines to the house and backyard. Approximately one year after the vault was installed, Callaghan hired another subcontractor – Dunn's Designer Pools ("Dunn's) - to build the pool and spa. Callaghan was friends with the owner of Dunn's.
Callaghan obtained permits for the pool and spa. The site plan he submitted to the County Building Department in connection with his pool and spa application depicted a pool vault. However, Callaghan did not obtain separate permits for the vault and propane line, nor did he have the County inspect the vault.
While constructing the pool and spa, an employee of Dunn's (Regalado) became seriously injured when an explosion caused by propane that had bled into the vault ignited an explosion. Regalado sued Callaghan arguing, among other things, that Callaghan's failure to obtain separate permits for the vault and propane line affirmatively contributed to the accident. During trial, Callaghan argued that he was entitled to a special jury instruction that, in order for him to be liable, he must have “affirmatively contributed” to Regalado's injury. Regalado argued that the instruction (from CACI 1009B) that the "negligent exercise of [Callaghan's] retained control over safety conditions was a substantial factor in causing [Regalado's] harm" was sufficient. The trial court agreed with Regalado. Regalado prevailed at trial and was awarded approximately $3,000,000 in damages.
On appeal, and as relevant to this article, the Court of Appeal affirmed, ruling that, while a hirer must have engaged in some form of active direction or conduct, “affirmative contribution" need not always be in the form of actively directing a contractor or contractor's employee and there "will be times when a hirer will be liable for its omissions.” The Court went on to note, in weighing the sufficiency of the evidence, that the failure to obtain separate permits could provide the basis for affirmative contribution liability.
Regalado appears to demonstrate a fairly low threshold for affirmative contribution. However, Regalado should be distinguished, at least in many cases, due to the fact that the defendant was an owner/builder and licensed contractor.
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