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The Morrison Law Journal
April 2019
Volume XIV, Edition 4

When It Only Has To Be "Substantial": Court of Appeal Rules That A General
Contractor May Be Liable For Personal Injuries Suffered By An Employee Of A
Subcontractor Where The General Contractor Retains Control Over Worksite Safety And
Is A Substantial Factor In Causing The Accident

By: Edward F. Morrison, Jr., Esq.
Larry A. Schwartz, Esq.

As many are aware, in the "Privette" and "Toland" line of cases from the 1990s, the California Supreme Court ruled, in personal injury cases, that an employee of an independent contractor who is injured in the workplace may not recover tort damages from the hirer of the independent contractor. See, Privette v. Superior Court (1993) 5 Cal.4th 689 and Toland v. Sunland Housing Group, Inc. (1990) 18 Cal.4th 253. The Supreme Court has also articulated an exception to the "Privette Doctrine," where the hirer of an independent contractor may be liable to the contractor's injured employee when the hirer has retained control over safety conditions at the worksite, and the hirer's negligent exercise of retained control has "affirmatively contributed" to the employee's injuries. See, Hooker v. Department of Transportation (2002) 27 Cal.4th 198 and McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219. The reach of that exception was somewhat limited in the more recent Sea Bright Insurance Company v. US Airways, Inc. (2011) 52 Cal.4th 590 decision where the California Supreme Court applied the Privette Doctrine and ruled that a hirer that failed to comply with Cal-OSHA workplace safety requirements may not be liable for having failed to comply with applicable workplace requirements.

One issue that has arisen is whether a hirer who retains control may be liable for a workplace accident if it is only a "substantial factor" in causing the injury (without a finding that it affirmatively contributed to the accident. Some guidance has been provided in the recent California Court of Appeal, First Appellate District, case in Strouse v. Webcor Construction, LP (2019) Westlaw 1772600.

In the Strouse case, Webcor Construction, LP ("Webcor") was the general contractor for the rehabilitation of the California Memorial Football Stadium in Berkeley, California. Webcor hired ACCO Engineered Systems ("ACCO") to perform ventilation and plumbing services as a subcontractor on the project. James Strouse, an ACCO employee, suffered a serious workplace injury when his leg fell into a 12 inch deep expansion joint after the plywood safety cover gave way. Strouse sued Webcor on the theory that Webcor had retained control and was responsible for the safety cover.

As relevant to this Article, counsel for Strouse argued at trial that Webcor should be liable for his injuries if the jury were to find that Webcor was a "substantial factor" in causing the accident. In that regard, it was undisputed that Webcor was responsible for


the project's general access areas, including an expansion joint in an area known as "Line 53." It was also demonstrated at trial that Webcor knew that safety covers in the Line 53 area had been damaged or had become unsecured due to subcontractors removing them without securing them back in place.

At trial, the jury found Webcor 100 percent at fault and awarded over $2.6 million in damages (ACCO also prevailed on an Indemnity Cross-Complaint which had been filed by Webcor). On appeal, Webcor argued that a jury instruction, based on CACI No. 1009B, which only required a finding that Webcor's "negligent exercise of its retained control over safety conditions was a substantial factor in causing [Plaintiff] harm" was in error based on the Privette Doctrine. Webcor argued that the jury instruction should have required to jury to find "affirmative contribution." Webcor also contended the trial court erred by instructing the jury on negligence per se based on workplace safety regulations promulgated under Cal-OSHA because: the jury was not first instructed to find affirmative contribution by Webcor and Webcor had delegated its Cal-OSHA responsibilities to ACCO in the subcontract.

Weighing the case law on point, including a more recent case, Regalado v. Callaghan (2016) 3 Cal.App.5th 582, the Court ruled that a substantial factor standard is sufficient for a finding of liability and further ruled that, under the facts of the case, any delegation of Cal-OSHA responsibilities did not serve as a bar to liability.

The Strouse case marks an expansion of the "Retained Control Exception" to the Privette Doctrine and will be important for personal injury cases going forward.

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

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