A recent decision affirms the 1993 Privette doctrine, which provides Property Owners, Building Managers, and Contractors who delegate work to third parties, strong protections against tort liability.
Privette and its progeny are founded on the principle that a person who hires a contractor to perform a particular scope of work is shielded from liability for the contractor’s negligence because the hirer ordinarily controls the work and was hired for their greater ability to perform the contracted work safely. In particular, a consideration is that contractors are hired because of their greater ability to perform certain work safely and effectively.
The Privette rule does not apply in two limited situations: (i) where a hirer withholds critical information about a concealed hazard, or (ii) where a hirer retains control over the contractor’s work and actually exercises that control in a way that affirmatively contributes to a worker’s injury.
In CBRE v. Superior Court, an electrical foreman named Jack Johnson was injured while working on electrical wiring for a tenant improvement project. When he tried to replace a cover on a junction box labeled as 120-volts, but which contained mislabeled wires color-coded as 120-volt, the foreman touched a live 277-volt wire, fell off a ladder, and was seriously injured.
Johnson’s employer, the electrical subcontractor, started work on the project before the subcontractor executed a formal written subcontract with its general contractor. The general contractor and building manager had, before proceeding with the work, agreed to omit permits from their contract scope, and the general contractor’s bid solicitation to the electrical subcontractor specified that permits were omitted from the work scope.
After obtaining worker’s compensation coverage, Johnson asserted a further claim for civil tort liability against the building manager, general contractor, and Johnson’s employer, the electrical subcontractor. He argued that his case against these entities was actionable because there were triable issues of fact about whether one of the Privette doctrine’s exception applies, either because the entities failed to disclose the dangerous, concealed condition of the mislabeled electrical wiring, or retained control by directing the general contractor to proceed without a permit.
The property owner, building manager, and general contractor, however, argued that they were shielded from liability because they undisputably delegated worker safety responsibilities to the electrical subcontractor.
The appellate court paid particular attention to testimony that a foreman on a job site should not have relied on color codes or labelled voltages and should have used a meter and stick to test the voltage at the outlets, switches, boxes, wire and electrical. It further noted that the electrical subcontractor’s protocol was to hot-stick every box, even after inspection and lockout/tagout (indicating the work was final). Importantly, the electricians’ expert opined that there was no possible role for the property owner or building manager in the lockout/tagout process that was part of the electrical work’s safety protocols.
With regard to Johnson’s argument that the building manager failed to disclose a dangerous, concealed hazard of the mislabeled electrical wiring, the reviewing court found that the focus of whether this exception applies is on what the electrical subcontractor and its foreman were capable of discovering at the work site, not on what permits, inspections, and as-built drawings could have revealed. Johnson could have readily discovered the energized wire by metering it and had tools nearby that would reveal the safety hazard at the time of the accident. Because the evidence established that there were reasonable and easy ways for electrical employees to notice the live 277-volt wire in the 120 volt junction box, the court determined the non-disclosure exception did not apply.
With regard to Johnson’s argument that the property owner and building manager retained control of the work by directing the general contractor to proceed without a permit, the court stated that a hirer retains control when it has authority over the manner of the performance of the work that the contractor has agreed to perform, and uses that authority to affirmatively contribute to the injury of the contractor’s employee. Here, each of the parties had knowingly decided and agreed to proceed with the work without securing permits, and the decision to proceed without permits was unrelated to safety procedures for electrical work. Omitting project permits did not affect the manner in which the electrical subcontractor carried out the electrical work for which it was hired. Therefore, the evidence undisputably showed that at the time of Johnson’s accident, permits were not part of the contracted work, which was not a consideration in determining whether anyone exercised or retained control, and the second Privette exception did not apply.
Key takeaways from this case are that permit issues, contract terms, or a lack thereof are not necessarily critical to the application of Privette. The center of its application is whether, practically speaking, a contractor is in charge of the performance of its work site scope and whether the contractor controls the means and manner of performing its work, including necessary safety measures.
Marwa Katbi is an associate with Hunt Ortmann Palffy Nieves Darling & Mah, Inc. She represents general contractors, subcontractors, and property owners on contract, change order, design, delay, defect, payment, mechanic’s lien, and a multitude of other construction-related claims.
