Morrison Law Journal


The Morrison Law Journal October 2018 Volume XIII, Edition 10 A Victory For Personal Injury Plaintiffs: Court Of Appeal Affirms Judgment Against Facility Owner For Severe Personal Injuries Arising From Accident Involving Employee Of Independent Contractor Based on Negligent Exercise of "Retained" Control By: Edward F. Morrison, Jr., Esq. Larry A. Schwartz, Esq.
As many are aware, the California Supreme Court has ruled that when injuries resulting from an independent contractor's performance of inherently dangerous work are to the employee of the independent contractor, and are subject to workers' compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor and who did not cause the injuries. See, Privette v. Superior Court (1993) 5 Cal. 4th 689. However, the California Supreme Court has also ruled that a hirer is liable to an employee of an independent contractor where the hirer's exercise of retained control affirmatively contributed to the employee's injuries. Hooker v. Department of Transportation (2002) 27 Cal.4th 198. The issue of "retained" control has sparked much debate. The matter of Sandoval v. Qualcomm, Inc. (2018) WL 5095094 ("Sandoval case") (published October 19, 2018) appears to shed some light – and in favor of plaintiffs. The Sandoval case concerned severe burn injuries suffered by an employee of a subcontractor who was working at the Qualcomm, Inc. ("Qualcomm") cogeneration facility in San Diego. Qualcomm acknowledged that the accident occurred at its facility but presented evidence that, on the day of the accident, it had three Qualcomm employees accompany the plaintiff and two co-workers to the mezzanine area of the facility where switchgear was located. Qualcomm presented further evidence that a 1200-amp “main cogen breaker” already had been unplugged and was resting on the floor, that the three Qualcomm employees were all dressed in personal protective equipment (PPE) and that the three Qualcomm employees went through what was described as a “lockout/tagout procedure.” It was also admitted by plaintiff that conditions were safe while the “lockout/tagout procedure” was given. However, the Qualcomm employees then left the area and were aware that the plaintiff and the two co-workers of plaintiff were not wearing PPE. Thereafter, a co-worker of plaintiff who was preparing a bid requested a cover be removed to take a photograph and, after a miscommunication with another co-worker (also not employed by Qualcomm), the plaintiff received severe burns. The jury apportioned fault as follows: 46 percent to Qualcomm, 45 percent to TransPower (the prime contractor, retained by Qualcomm), 9 percent to Plaintiff Sandoval, and zero percent to Sandoval's employer. 1 Qualcomm was aware that the plaintiff was not wearing PPE. And Qualcomm was on site and could have remained with the plaintiff. On that basis, the Trial Court and Court of Appeal ruled there was sufficient evidence for liability on the retained control exception to the Privette Rule (a Motion for New Trial on damages was granted). The Sandoval case may be the subject of a petition to the California Supreme Court. In the meantime, for cases in which an industrial owner remains on site and may have some cause for concern (such as an independent contractor not wearing PPE), the retained control exception to the Privette Rule may apply. 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. Publication Note: The Morrison Law Group wishes to disseminate this publication to all clients and colleagues of the Firm who wish to receive it. Should any recipient desire to be removed from the distribution list, or wishes to have a colleague added, please contact Jim Van Dusen at The Morrison Law Group at 213 356-5504 or vandusen@morrisonlawgroup.com. Disclaimer Note: The legal article presented above is intended to provide general information which may be of interest or use to clients and colleagues of The Morrison Law Group and should not be construed as legal advice on any matter. 2

As many are aware, the California Supreme Court has ruled that when injuries resulting from an independent contractor's performance of inherently dangerous work are to the employee of the independent contractor, and are subject to workers' compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor and who did not cause the injuries. See, Privette v. Superior Court (1993) 5 Cal. 4th 689. However, the California Supreme Court has also ruled that a hirer is liable to an employee of an independent contractor where the hirer's exercise of retained control affirmatively contributed to the employee's injuries. Hooker v. Department of Transportation (2002) 27 Cal.4th 198.

The issue of "retained" control has sparked much debate. The matter of Sandoval v. Qualcomm, Inc. (2018) WL 5095094 ("Sandoval case") (published October 19, 2018) appears to shed some light – and in favor of plaintiffs.

The Sandoval case concerned severe burn injuries suffered by an employee of a subcontractor who was working at the Qualcomm, Inc. ("Qualcomm") cogeneration facility in San Diego. Qualcomm acknowledged that the accident occurred at its facility but presented evidence that, on the day of the accident, it had three Qualcomm employees accompany the plaintiff and two co-workers to the mezzanine area of the facility where switchgear was located. Qualcomm presented further evidence that a 1200-amp “main cogen breaker” already had been unplugged and was resting on the floor, that the three Qualcomm employees were all dressed in personal protective equipment (PPE) and that the three Qualcomm employees went through what was described as a “lockout/tagout procedure.” It was also admitted by plaintiff that conditions were safe while the “lockout/tagout procedure” was given. However, the Qualcomm employees then left the area and were aware that the plaintiff and the two co-workers of plaintiff were not wearing PPE. Thereafter, a co-worker of plaintiff who was preparing a bid requested a cover be removed to take a photograph and, after a miscommunication with another co-worker (also not employed by Qualcomm), the plaintiff received severe burns. The jury apportioned fault as follows: 46 percent to Qualcomm, 45 percent to TransPower (the prime contractor, retained by Qualcomm), 9 percent to Plaintiff Sandoval, and zero percent to Sandoval's employer.

Qualcomm was aware that the plaintiff was not wearing PPE. And Qualcomm was on site and could have remained with the plaintiff. On that basis, the Trial Court and Court of Appeal ruled there was sufficient evidence for liability on the retained control exception to the Privette Rule (a Motion for New Trial on damages was granted).

The Sandoval case may be the subject of a petition to the California Supreme Court. In the meantime, for cases in which an industrial owner remains on site and may have some cause for concern (such as an independent contractor not wearing PPE), the retained control exception to the Privette Rule may apply.

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.

Publication Note: The Morrison Law Group wishes to disseminate this publication to all clients and colleagues of the Firm who wish to receive it. Should any recipient desire to be removed from the distribution list, or wishes to have a colleague added, please contact Jim Van Dusen at The Morrison Law Group at 213 356-5504 or vandusen@morrisonlawgroup.com.

Disclaimer Note: The legal article presented above is intended to provide general information which may be of interest or use to clients and colleagues of The Morrison Law Group and should not be construed as legal advice on any matter.