By Eric Ganci
I recently blogged on the March 2023 case decision Marin et al. v. Department of Transportation, which discusses the Privette Doctrine. A case held about a month prior, Degala v. John Stewart Company* also gives foundation, explanation and application of this Privette Doctrine.
A recap: what is the Privette Doctrine?
Per this case, Privette v. Superior Court**, generally, “a hirer or landowner is ordinarily not liable for injuries to contract workers.”
“A presumptive delegation of tort duties occurs when the hirer turns over control of the worksite to the contractor so that the contractor can perform the contracted work. Our premise is ordinarily that when the hirer delegates control, the hirer simultaneously delegates all tort duties the hirer might otherwise owe the contract workers.”
However, there are exceptions to Privette, such as if the “delegation is either ineffective or incomplete.” Such is the case in this Degala case.
Here is the general law on whether the delegation is either ineffective or incomplete:
“[W]hen the hirer does not fully delegate the task of providing a safe working environment, but in some manner actively participates in how the job is done, and that participation affirmatively contributes to the [contractor’s] employee’s injury, the hirer may be liable in tort to the [contractor’s] employee.”
Accordingly, “[i]f a hirer entrusts work to an independent contractor but retains control over safety conditions at a jobsite and then negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, the hirer is liable for those injuries, based on its own negligent exercise of that retained control.”
To understand delegation, we must first understand whether a Hirer “retains control”:
The general law on this is as follows. All are direct cites from this Degala case, often citing to other cases to give the law:
“A hirer ‘retains control’ where it retains a sufficient degree of authority over the manner of performance of the work entrusted to the contractor.”
“A hirer ‘actually exercise[s]’ its retained control over the contracted work when it involves itself in the contracted work ‘such that the contractor is not entirely free to do the work in the contractor’s own manner.’”
“Unlike ‘retained control’ which is satisfied where the hirer retains merely the right to become so involved, ‘actual exercise’ requires that the hirer in fact involve itself, such as through direction, participation, or induced reliance.”
Neither “ ‘actual exercise’ ” nor “ ‘affirmative contribution’ ” requires that the hirer’s alleged negligence must itself be an affirmative act. ( Ibid.) Rather, “[t]he hirer’s negligence may take the form of any act, course of conduct, or failure to take a reasonable precaution that is within the scope of its duty…”
“Accordingly, a hirer may be liable for failing to undertake a promised safety measure.”
“If a plaintiff proves that the hirer actually exercised retained control in a way that affirmatively contributed to the contract worker’s injury, the plaintiff establishes that the hirer owed the contract worker a duty of reasonable care as to that exercise of control.”
What factors did the Court consider in Degala to determine Hirer retained control?
Degala is a case where a 3rd Party attacked a worker (Plaintiff) hired by a subcontractor.
The parties are: “John Stewart Company (JSC) was the general partner of the limited partnership that owned the property, and as such signed the contract hiring Cahill Contractors, Inc. (Cahill) as the general contractor on the project. Cahill in turn hired Janus Corporation (Janus) as a subcontractor to perform demolition work at the site. Abraham Degala was an employee of Janus, and one of its foremen.”
An important note is: “[t]he project site was located in an area known to have a high rate of crime.”
The Court considered security measures taken at the site after the attack on Plaintiff:
- JSC (general partner) hired off-duty police officers to be stationed on site during work hours.
- Cahill (general contractor hired by JSC) added a perimeter fence around the entirety of phase three of the project, eliminating the public walkway where Degala sustained his injuries.
- JSC and Cahill were having weekly discussions about site security because of ongoing concerns about the safety of property and people at the site.
- JSC and Cahill were implementing different measures to protect property and people in response to incidents in the neighborhood. These measures included:
- Elimination of overtime.
- Instructions to stop work before sundown.
- Instructions to stay indoors for lunch and breaks
- Occasional closures of the site.
Another point of law, although JSC and Cahill implemented some safety measures after this Incident against Worker Degala, and usually per California Evidence Code 1151 “evidence of remedial measures taken after the incident is inadmissible to show negligence”…”the evidence is admissible and relevant here to show that JSC and Cahill had retained control over site security.”
Let me try to make this bite-size: in a case dealing with the Privette Doctrine where there are safety measures, the objective evidence to understand, per Degala, may be if the Hiring company:
- Hired security;
- Added safety, perimeter fencing;
- Eliminated public walkways in any way;
- Held regular, consistent site security meetings;
- Implemented measures to:
- Elimination of overtime.
- Instructions to stop work before sundown.
- Instructions to stay indoors for lunch and breaks
- Occasional closures of the site.
What happened in Degala ultimately?
The Trial Court granted Defendant’s MSJ. But this Court reversed that ruling.
*Cited as of 3/2/23 as 2023 WL 1792984
**Cited as Privette v. Superior Court (1993) 5 Cal.4th 689
