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By Kent Holland

An employee of an independent contractor cannot generally recover damages from the one who hired the contractor for work-related injuries. One exception to this rule is where the hirer actually retained control of the work or otherwise caused or contributed to the injuries. In Khosh v. Staples Construction Company, 4 Cal. App. 5th 712 (2016) an appellate court affirmed a trial court’s dismissal of a subcontractor employee’s case because the employee failed to present evidence that the prime contractor (“hirer”) retained control over the work and affirmatively contributed to his injuries. Although the contract between Staples Construction and the project owner required the prime contractor to “exercise precaution at all times for the protection of persons and their property,” and to “retain a competent, full-time, on site-superintendent to … direct the project at all times,” and otherwise made the prime contractor “exclusively responsible” for the health and safety of its subcontractors, and required it to submit “comprehensive written work plans for all activities affecting University operations,” this was not sufficient in itself to render the prime contractor in “control” over the work actually performed by the subcontractor’s employee.

 

The individual was injured while performing electrical work at the University project. His employer was a sub-subcontractor on the project. His direct employer on the day of the accident informed the prime contractor that it needed three days to accomplish its last task on the project, and that the electrical system needed to be shut down for it to perform its work. The individual arrived at the site two and a half hours before the shutdown was scheduled to occur, but rather than wait, he went ahead and performed work in the electoral substation where the switchgear was still energized. An electrical arc flash occurred and severely injured him. The flash occurred a half an hour before the shutdown was scheduled to begin. During this earlier than scheduled performance of work, the prime contractor had no personnel at the site.

Despite being injured because he worked on the switchgear with full knowledge that the electricity was still on but would be turned off shortly if he just waited until the schedule turn-off time, the individual sued the prime contractor for negligence. Unless he could succeed in a negligence action, he would be stuck with what recovery could be had under workers compensation. But, as explained by the court, “in order for a worker to recover on a retained control theory, the hirer must engage in some active participation.”

The court further explained that, “An affirmative contribution may take the form of directing the contractor about the manner of performance of the work, directing that the work be done by a particular made, or actively participating in how the job is done.” In this case there was no evidence that the prime contractor did any of these things. Moreover, the court concluded that, “A hirer’s failure to correct an unsafe condition, by itself, does not establish an affirmative contribution.” For these reasons, the injured individual was not entitled to proceed to trial against the prime contractor, and would instead be limited to the benefits available under workers’ compensation.

 

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. 19, No. 3 (March 2017).

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