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Where a masonry subcontractor employee was injured by slipping on a plastering subcontractor’s wet scaffolding, the laborer sued the project general contractor (GC) alleging his injuries were caused by the GC’s negligence in sequencing and coordinating construction work at the site, and failing to call a “rain day” to protect workers from dangerous conditions caused by slippery surfaces.  Summary judgment was granted for the GC and affirmed on appeal, on the basis that the GC did not exercise control of the jobsite in a way that affirmatively contributed to the laborer’s injuries.  Although the evidence showed that the GC was responsible for coordinating and scheduling the work of subcontractors and had authority to direct that the scaffold be removed (and had even agreed that the scaffold could remain in the area where the laborer was working), this was not deemed sufficient by the court to raise an issue of triable fact as to whether the GC affirmatively contributed to the laborer’s injuries.  Brannan v. Lathorp Construction, 206 Cal. App.4th 1170 (2012).

In this case, the laborer pled causes of action for negligence and premises liability. His negligence cause of action alleged, among other things, Lathrop failed to coordinate and control the work being performed on the job site in a safe and proper manner, thereby creating a risk of injury to workers. He alleged he was forced to work in and around scaffolding that prevented and blocked his access to his work, causing him to fall. His premises liability claim was based on essentially the same facts.

The essential underlying facts of the case are that the masonry subcontractor’s employees were working at ground level laying brick veneer.  The masonry had a foreman on site the day of the accident whose job it was to make sure the site was safe for the mason’s employees. He did not need authority from the GC to call off work if he saw something was unsafe. He was aware of the plaster scaffolding in the area where the employees were working. The scaffolding was not being used on the day of the accident, but the masonry employees were working around it. The foreman did not have safety concerns about his workers working around the scaffolding, but he did feel the scaffolding would slow down their work. He asked the GC before the accident when the plaster scaffold would be removed. The subcontractor foreman had the authority to call work off if he believed rain (or any other condition) made conditions unsafe, but had no concerns about the rain or wetness on the day of the accident other than that it slowed down the work. The foreman believed his crews could work around the plaster scaffold, and had no safety concerns about them stepping onto the scaffold rungs to get to the other side. The GC did not direct the foreman or the laborer on how the masonry was to be laid.

At the time of the accident, the laborer was trying to cross over the plaster scaffold to gain access so he could lay masonry in an area underneath it. He alleges he stepped up onto the second rung of the scaffold believing there was no other way to access the area in which he was working. No one told the laborer to gain access the way he did. He alleges he slipped off the rung because it was wet and his feet were muddy. He filed a workers’ compensation claim shortly after the accident and subsequently filed this suit against the GC.

Citing a recent California Supreme Court decision of SeaBright Ins. Co. v. U.S. Airways, Inc. (2011), the court  summarized what is known in California as the  PrivetteToland doctrine as follows: “Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work….  By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract.” One of the doctrine’s underpinnings is the availability of workers’ compensation to the injured employee: “[W]hen the person injured by negligently performed contracted work is one of the contractor’s own employees, the injury is already compensable under the workers’ compensation scheme and therefore the [law] should provide no tort remedy, for those same injuries, against the person who hired the independent contractor….” Because the workers’ compensation scheme shields an independent contractor from tort liability to its employees, “applying the peculiar risk doctrine [allowing suit against the hirer] to the independent contractor’s employees would illogically and unfairly subject the hiring person, who did nothing to create the risk that caused the injury, to greater liability than that faced by the independent contractor whose negligence caused the employee’s injury.”

The court went on to explain that “Thus, subject to certain exceptions, when a general contractor hires a subcontractor, the general contractor is not liable for injuries that occur to the subcontractor’s employees.” The exception at issue in this case was one that was first explained in the case of Hooker v. Department of Transportation (27 Cal.4th 198, 2002), which stated, “Thus, subject to certain exceptions, when a general contractor hires a subcontractor, the general contractor is not liable for injuries that occur to the subcontractor’s employees.” The exception in issue here is described in Hooker v. Department of Transportation (27 Cal.4th 198, 2012). “In Hooker, the court considered whether the hirer of an independent contractor could be held liable for injuries to the contractor’s employee resulting from the contractor’s negligence under the theory the hirer retained control of the work but negligently exercised that control. The high court held in Hooker ‘a hirer of an independent contractor was not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but was liable to such an employee insofar as its exercise of retained control affirmatively contributed to the employee’s injuries.’

What the court here concluded was that although the Defendant was responsible for coordinating and scheduling the work of subcontractors on the project, and had the authority to direct that the plastering scaffold be removed, this did not constitute affirmative contribution to the laborer’s injuries.  The GC’s exercise of retained control in this instance, concluded the court, did not affirmatively contribute to the accident. “[GC] did not direct [laborer’s] work, and did not tell [laborer] to gain access under the plaster scaffold the way he did. Although [laborer] contends he was left with no other option than to climb over the rungs of the scaffold, that fact does not distinguish this case from Hooker.”   The GC’s act of allowing the scaffolding to remain in place while the masonry work proceeded likewise was found not be an exercise of retained control over safety.  Finally, the GC’s failure to call a rain day is also unavailing. As stated by the court, “The undisputed evidence showed “[the masonry] foreman had the authority to call a rain day himself without [GC’s] approval if he thought the conditions made the masonry work unsafe. [The foreman] testified he had no concerns about the rain or wetness in the work area the day of the accident other than that it slowed down the work. He did not have any safety concerns about his workers stepping onto the rungs of the scaffold to gain access to where they were working.”

For all these reasons, the court found the GC had not exercised its retained control over the jobsite to such an extent as to affirmatively contribute to the injuries, and, therefore, as a matter of law the case was correctly dismissed on a summary judgment motion without going to the jury for consideration of the factual merits of the matter.

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 14, No. 10 (Nov 2012).

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