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Hirers Must Affirmatively Exercise Retained Control to be Liable Under Hooker Exception to Privette



Don’t drink and drive people. I mean seriously. It’s been over 40 years since California native Candace Lightner formed Mothers Against Drunk Driving in 1980 after her 13-year-old daughter, Candace, was killed by a drunk driver who later served just 9 months in jail before getting out and getting into his sixth (yes, sixth) drunk driving accident. It hurts the victims and their families, makes a mess for the offender (and their family), and, as the next case, Marin v. Department of Transportation, 88 Cal.App.5th 529 (2023), illustrates, can needlessly draw out the pain as the victim’s family seeks financial recourse for their emotional loss from others.


Miguel Angel Rodriguez De La Cruz, a highway construction worker, was killed by a drunk driver. I’m not sure what his family did on the legal front after his death – perhaps sued the drunk driver – but among possible others they sued the California Department of Transportation. And they lost. Although there is no such thing as “winning” and “losing” in these types cases. It’s just losing and losing.


The Marin Case


Mr. De La Cruz was a construction worker with O.C. Jones & Sons, Inc. who was under contract with the DOT to perform construction work along a stretch of Interstate 580 within the City of Oakland. The work included grinding and removing old asphalt and placing new asphalt.


On or about September 19, 2015, Mr. De La Cruz was part of a crew tasked with removing asphalt along the highway. To conduct this work, DOT followed O.C. Jones’s request to close the number 1 and number 2 lanes. To mark the closure, O.C. Jones placed traffic signs and an arrow board and then closed and separated the two lanes using a cone pattern with reflective tape. It was also marked by multiple signs as well as by construction and street lights.


While work was being performed it was discovered that O.C. Jones’s grinding equipment was not effective in removing certain pockets of asphalt. As such, Mr. De La Cruz and his team were directed to perform this work with hand and pneumatic tools. The area in which Mr. De La Cruz was working was illuminated by headlights on a front loader and ladder-mounted lights on a pickup truck with an air compressor trailer.


At about 12:18 a.m., while Mr. De La Cruz was speaking with the operator of the front loader, a drunk driver entered the closed lanes and struck Mr. De La Cruz before coming to a stop in the number 2 lane. Mr. De La Cruz died at the scene of the accident from multiple blunt traumatic injuries.


Mr. De La Cruz’ family later brought a wrongful death suit against DOT asserting three causes of action for vicarious liability for negligence of its employees, failure to discharge a mandatory duty, and dangerous condition on public property. DOT later successfully demurred to the failure to discharge a mandatory duty claim but the trial court overruled DOT’s demurrer on the other two causes of action.


In February 2020, DOT moved for summary judgment as to the remaining two causes of action. DOT contended in its motion that it was immune from liability as a public entity, the lawsuit was barred under the Privette doctrine which holds that hirers are not liable for injuries sustained by workers of those they hire, and that the drunk driver’s criminal conduct causing Mr. De La Cruz’s death was not reasonably foreseeable.


In support of its motion, DOT filed a declaration by DOT inspector John Ruzic, who stated that it was his responsibility for ensuring that O.C. Jones comply with its contractual obligations including safety obligations, but that he did not instruct or control O.C. Jones as to how to comply with its safety obligations. DOT also filed a declaration by DOT construction engineer Hana Khoury, who stated that the construction contract between DOT and O.C. Jones delegated to O.C. Jones responsibility for selecting the means and methods of performing its work, including the means and methods of ensuring worker safety.


In response, the Plaintiffs pointed out that under the DOT’s 2010 Specifications, DOT’s resident engineer was responsible for making final decisions on questions regarding the construction contract, including the manner of work performance and work quality and accessibility. The Plaintiffs also submitted a declaration by a civil and traffic engineer, Christian Engelmann, who opined that the project site constituted a dangerous condition on the night in question, that Mr. De La Cruz’s death was foreseeable based on that dangerous condition, and that DOT had a duty to inspect the project site for proper safety measures which it failed to do. In response, DOT filed objections to 32 statements made in Mr. Engelmann’s declaration.


In November 2020, the trial court granted DOT’s motion for summary judgment, concluding that DOT was not liable for Mr. De La Cruz’s death under the Privette doctrine because DOT had delegated safety obligations to O.C. Jones. The trial court also concluded that was not liable for Mr. De La Cruz’s death because the conduct of the drunk driver was not reasonably foreseeable. Finally, the trial court sustained 31 out of 32 objections DOT had filed to Mr. Engelmann’s declaration without explanation.

The Plaintiffs appealed.


The Appeal


The 1st District Court of Appeal explained that on an appeal from a motion for summary judgment the appellate court reviews the trial court’s decision de novo “considering all the evidence set forth in the moving and opposing papers except that to which were [properly] made and sustained” and in doing so exercises “independent review to determine if the defendant owing for summary judgment met its burden in establishing a complete defense or of negating each of the plaintiff[s’] theories and establishing that the action was without merit.” “Ultimately,” explained the Court, “we must affirm summary judgment ‘if it is correct on any grounds asserted in the trial court, regardless of the trial court’s reasons.'”

While noting that the trial court incorrectly ruled on DOT’s 32 objections by issuing a blanket ruling which sustained all but one of them, without explanation, the Court of Appeal nevertheless found that the trial court’s ultimate ruling granting the motion for summary judgment was correct.


Under the Privette doctrine, explained the Court of Appeal:


‘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. That implicit delegation includes any tort law duty the hirer owes to the contractor’s employees to comply with applicable statutory or regulatory safety requirements.’

“There are, of course, exceptions,” explained the Court of Appeal, one of which is known as the Hooker exception. It is under this exception that the Plaintiffs rely, noted the Court, whereby Plaintiffs argue that summary judgment should have been denied because DOT retained control over job site safety. However, “Plaintiffs read Hooker too broadly,” explained the Court. Under the Hooker exception, “‘a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite’; rather, ‘a hirer is liable to an employee of a contractor insofar as a hirer’s exercise of retained control affirmatively contributed to the employee’s injuries.'”


Thus, explained the Court:


‘Contract workers must prove that the hirer both retained control and actually exercised that retained control in such a way as to affirmatively contribute to the injury.’ ‘A hirer “actually exercise[s]” its retained control over the contracted work when it involves itself in the contracted work “such that the contractor is not entirely free to do the work in the contractor’s own manner.” Moreover, ‘the affirmative contribution requirement can be satisfied only if the hirer in some respect induced—not just failed to prevent—the contractor’s injury-causing conduct,’ or ‘where the hirer’s exercise of retained control contributes to the injury independently of the contractor’s contribution (if any) to the injury.’

Section 7 of the construction contract between DOT and O.C. Jones, held the Court of Appeal, expressly delegated matters of safety at the project site to O.C. Jones. That section, noted the Court, states in relevant part:


In the performance of this contract, the contractor shall comply with all applicable Federal, State, and local laws governing safety, health and sanitation. The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the SHA contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract . . . . [T]he contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are . . . hazardous or dangerous to his or her health or safety . . . .

Further, explained the Court of Appeal, although Section 5 of the construction contract provided that DOT’s resident engineer was authorized to make final decisions on questions regarding the contract including “work quality and acceptability” and the “manner of performance of the work,” this section “refers to work quality/acceptability and the manner of work performance, not project safety” and DOT “did not direct or order the means and methods used by O.C. Jones to provide worker safety,” “did not have the responsibility for setting up the barriers, cones or warning signs,” and “did not prevent O[.]C[.] Jones from complying with its obligations to provide a safe work site.”


Finally, in response arguments by the Plaintiffs that the evidence showed that DOT retained control over the project site and affirmatively contributed to the accident by “authoriz[ing] lane closures,” that DOT could have also “authorize[d] the use of attenuator vehicles,” that DOT “expected its employees to be familiar with its Code of Safe Practices” and that DOT required its resident engineer “to file daily reports on the condition of the [project] site,” which it did not do, the Court explained that. “this evidence, [even if] viewed in a light favorable to plaintiffs, does not overcome the barrier to liability effected by Privette and its progeny.”:


Evidence that the DOT could have authorized a lane closure or use of an attenuator vehicle, ‘at most, [proved] that [DOT] safety personnel were aware of an unsafe practice and failed to exercise the authority they retained to correct it.’ Further, evidence that the DOT expected O.C. Jones’s employees to learn and to follow safety policies is not evidence that the DOT ‘both retained control andactually exercised that retained control in such a way as to affirmatively contribute to the injury.’ Under these circumstances, where it was undisputed the DOT did not direct the means or methods of decedent’s work on the day in question or instruct his employer on how to provide for his or his coworkers’ safety, summary judgment was appropriate.


Conclusion


A sad ending to a sad situation. However, Marin highlights that the Hooker exception to the Privette doctrine requires more than a hirer simply retaining control over a worksite, and requires that a hirer “both” retain control over a worksite “and” actually exercise that retained control (not just fail to act) in such a way as to affirmatively contribute to a worker’s injury.

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