Most Recent CA. Commercial Digest
INJURED SUBCONTRACTOR EMPLOYEE MUST PRESENT EVIDENCE
OF AFFIRMATIVE NEGLIGENCE BY GENERAL CONTRACTOR
David Madden v. Summit View, Inc.
2008 West Law 3274100 (Cal.App. 1 Dist.) August 11, 2008
OVERVIEW
This case represents a further development favorable to defendants in the line of cases following Privette v. Superior Court (1993) 5 Cal. 4th 689 and Toland v. Sunland Housing Group, Inc. (1998) 18 Cal. 4th 253. The court confirmed that Cal-OSHA regulations do not operate to enlarge the general contractor’s common law duty of care toward its subcontractor’s employees, and that even if they did, the evidence would have to show that the regulation cited was applicable in the situation.
FACTS
The plaintiff, David Madden, was the employee of an electrical subcontractor working at a home construction site. The general contractor was Summit View. While pulling and untangling electrical wire, the plaintiff walked backwards and stepped off a raised patio area. The patio was between two and eight feet high over sloping ground; the plaintiff did not know how far his fall was, and there were no witnesses. Because of the changing elevation, it could not be established whether a Cal-OSHA regulation requiring a railing in areas more than 7.5 feet high was applicable.
TRIAL COURT ACTION
Madden sued Summit View, Inc., on the theory that it failed to place a protective railing around the patio. The general contractor then moved for summary judgment under the theory that it owed no duty to the employee of a subcontractor under California law. Summit View cited the Privette-Toland doctrine, which holds that a contractor’s employee is covered by the workers’ compensation scheme, and that the peculiar risk doctrine provides no tort remedy against the person hiring the employee’s employer. Similarly, the Hooker case determined that the hirer of an independent contractor is not liable to a subcontractor’s employee merely because the hirer retained control over safety conditions–its exercise of control must have affirmatively contributed to the employee’s injuries–such as providing unsafe equipment used by the injured worker.
The trial court determined that these doctrines were applicable and even though there was a triable issue whether Summit View had retained control over safety conditions at the work site, there was no evidence that the general contractor affirmatively contributed to the injuries. Even though Summit View did not put up a railing, it did nothing to prevent the erection of a railing.
APPEAL
The appellate court noted that the general contractor exercised no control over the means and methods of the subcontractor’s work, nor did Summit View retain control over the general safety conditions. The absence of a guardrail was open and obvious; the general contractor was in no better position to know this than the plaintiff’s employer. Madden directed his own work, and the general contractor did not instruct him to do his work in an especially dangerous manner. The court observed that the plaintiff could not simply assume his own employer lacked the authority to take reasonable precautions or was prevented from doing so.
The court affirmed prior holdings that Cal-OSHA regulations cannot be used to expand a general contractor’s duty of care to an injured employee of a subcontractor. It stated that violations of safety regulations are only applicable in actions by employees of subcontractors where evidence establishes that the general contractor affirmatively contributed to the employee’s injuries. Here, there was no evidence of any affirmative contribution to the accident by the general contractor. The court noted that even if it rejected this rule and accepted that Cal-OSHA regulations applied, the plaintiff still had no evidence that a railing was required at the location where he fell.
COMMENT AND CONCLUSION
The case strengthens the existing doctrine of Privette, Toland and others, holding that an employee of a subcontractor has no tort remedy against a general contractor in the absence of affirmative negligence by the general contractor. It emphasizes that this is the necessary result particularly when there is no evidence that an alleged failure to act had any direct bearing on the cause of the accident.
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