The Morrison Law Journal
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.