Although unpublished, this is an excellent review of a line of Supreme Court cases outlining when a lawsuit by an independent contractor's employee, against the company hiring the subcontractor, is permitted.
... In other words, when such a claim will NOT fall within the exclusive remedy rule of workers' compensation law.
The facts involve a wrongful death and personal injury action brought on behalf of a worker electrocuted, and the coworker who attempted to rescue him, when a heavy-equipment scraper being repaired came in contact with power lines.
Both men were part of a construction team building a shopping center and worked for a subcontractor who in turn was hired by another subcontractor of the general.
The facts were undisputed that the general contractor neither owned nor controlled the shopping center property, the scraper itself, or the area where the scraper was parked at the time of the incident.
Nor did the general have any control over the repair of any of the subcontractors' equipment or the actions of the two subcontractors injured and killed.
The plaintiffs, however, argued that the lawsuit against the general was permitted under the doctrine of "non-delegation of duties."
In analyzing this argument, the appellate court noted that the line of Supreme Court cases on point started with
Privette v. Superior Court (1993) 5 Cal.4th 689, 693, and continued through to Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 -- collectively comprising what has become known as the "Privette doctrine."
That doctrine specifies that a subcontractor's employee cannot sue the hirer of that contractor under the peculiar risk doctrine, though subsequent decisions did carve out an exception:
"Although an injured worker... may not sue a general contractor for a peculiar risk, such a worker may sue the general contractor for specific, nondelegable duties in certain cases.
"The nondelegable duty doctrine addresses an affirmative duty imposed by reason of a person or entity's relationship with others. Such a duty cannot be avoided by entrusting it to an independent contractor.
"Nondelegable duties may arise when a statute provides specific safeguards or precautions to insure the safety of others."
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Although plaintiffs' counsel attempted to use at least one PUC order, a Cal/OSHA regulation and even a penal code statute to show that a "nondelegable duty" was involved here, the appellate court rejected them all.
It also noted that the Privette doctrine was equally applicable to multiple levels of subcontractors -- a "subcontractor of a subcontractor of the general" (as was the case here) -- and not limited to the specific fact pattern of Privette (which only involved a general and a single subcontractor).
The Court affirmed the trial court's summary judgment in favor of the general contractor.
The case is Maxwell v. Mercer Construction.
To read the full opinion,
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CLICK HERE.
