Personal Injury Attorney Woodland Hills
There are a number of common protective doctrines and legal causes of action that arise from construction sites. As a construction worker, it can be difficult to know who is responsible for your on-the-job injuries, especially when multiple contractors are involved. Some common suits revolve around the Workers’ Compensation Exclusivity Rule, the Privette Doctrine, Negligent Undertaking and Premises Liability.
Workers’ Compensation Exclusivity Rule
The Workers’ Compensation Exclusivity Rule refers to Labor Code section 3602 and essentially establishes that, even when a claim for workers’ compensation is brought against an employer, a claim for damages can still be made against other parties, not including the employer.
“The exclusive remedy rule is contained in Labor Code section 3602, subdivision (a): “Where the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer. The fact that either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee’s industrial injury shall not permit the employee or his or her dependents to bring an action at law for damages against the employer.” (Italics added.)” (See Lab. Code, § 3602(a).)
The rule acts as a protection for employers so they are not responsible for damages already being accounted for through workers’ compensation. The protection can only be utilized on behalf of the employer. On construction sites where it is typical to have owners, general contractors, and sub-contractors, it is necessary to determine who is employing who. Otherwise, those using it risk an inaccurate application. Note that independent contractors and employers are defined differently under the law. Much of the discrepancy is due to the element of control.
Privette Doctrine/Non-Negligent Hirers
The Privette Doctrine is another type of protection that applies to non-negligent hirers. “An entity that hires an independent contractor whose employee is injured during performance is not liable to the employee for common law tort damages when the hirer did not proximately cause the injuries to the contractor’s employee.” (Privette v. Superior Court (1993) 5 Cal.4th 689,731). For example, if an owner of a property hires a subcontractor company to re-roof a building on the property and one of the roofers is injured on the job, the owner of the property is not liable so long as they did not proximately cause the injuries. This protection can apply to any type of hirer — “a landowner, general contractor, or any other entity that hires an independent contractor.” (Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 269–270; Michael v. Denbeste Transportation, Inc. (2006) 137 Cal.App.4th 1082, 1097.)
Somewhat similar to the Workers’ Compensation Exclusivity Rule, when using the Privette Doctrine, one of the most important factors to demonstrate is who hired who. To bar liability, the defendant must also be the hirer.
Negligent Undertaking Cause of Action
For plaintiffs, one of the common causes of action is called Negligent Undertaking. This occurs when the defendant has an agreement to render services to some party other than the plaintiff. By agreeing to render those services, the defendant has created a duty to third parties such as the plaintiff. Negligent undertaking is a breach of that duty.
According to the Restatement, a negligent undertaking cause of action requires evidence that:
“(1) the actor undertook, gratuitously or for consideration, to render services to another;
(2) the services rendered were of a kind the actor should have recognized as necessary for the protection of third persons;
(3) the actor failed to exercise reasonable care in the performance of the undertaking;
(4) the actor’s failure to exercise reasonable care resulted in physical harm to the third persons; and
(a) the actor’s carelessness increased the risk of such harm, or
(b) the actor undertook to perform a duty that the other owed to the third persons, or
(c) the harm was suffered because either the other or the third persons relied on the actor’s undertaking. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 613-614.)” (Paz v. State of California (2000) 22 Cal.4th 550, 559.)”
As it pertains to the third requirement above, negligence can be alleged in “general terms, specifying, however, the particular act alleged to have been negligently done.” Similarly, as it pertains to the fourth requirement, causation can be pleaded generally as well. (Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 103.) Note that for the fifth requirement, the word “either” suggests that any one of the three options (a-c) can be satisfied to satisfy the whole fifth prong.
Lastly, another cause of action for plaintiffs involves premises liability. Premises liability and negligence both have the same causes of action. A plaintiff must prove, ‘ “a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” ’” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) A legal duty is created for property owners on land they “own, possess, or control. But … the phrase ‘own, possess, or control’ is stated in the alternative. A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162; see CACI No. 1000.). This means that even if the defendant does not own the land per se, but has the right to control or manage it, they can be liable for premises liability. For example, if a landowner entrusts a general contractor with hiring subcontractors who work on the land and overseeing their work, that would be sufficient control for the general contractor to be held accountable for premises liability. (Roman Mora v. Kitchell Cem (2020) Cal. Ct. App., No. F078587 2020 WL 3530240).
So who can an injured worker sue when he is injured at a dangerous work site? The answer is, as always, it depends. It largely depends on who hired the worker, and who can be held accountable for premises liability. Be aware that certain circumstances will provide exceptions to liability such as those outlined under the Privette Doctrine and the Workers’ Compensation Exclusivity Rule. For the clearest evaluation of who is liable for a worker’s injury, contact an attorney with expertise in such liabilities. Call Barry P. Golberg today.