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Just Because You Caused it, Doesn’t Mean You Own It: The Hooker Exception to the Privette Doctrine



We’ve written before about the Privette doctrine, which establishes a presumption that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety. In other words, if a general contractor hires a subcontractor, the subcontractor is solely responsible for the safety of its workers.


There are two major exceptions to the Privette doctrine. The first, the Hooker exception, holds that a hirer may be liable when it retains control over any part of the independent contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the worker’s injury. The second, the Kinsman exception, holds that a hirer may be liable for injuries sustained by a worker of an independent contractor if the hirer knew, or should have known, of a concealed hazard on the property that the contractor did not know of and could not have reasonably discovered and the hirer failed to warn the contractor of the hazard.


The next case, McCullar v. SMC Contracting, Inc. (2022) 83 Cal.App.5th 1005, discussed the first of these two exceptions, the Hooker exception, in the context of worker slipping from ladder placed on an icy surface caused by a general contractor’s use of heaters in South Lake Tahoe, California.


The McCullar Case


Tommy McCullar worked for Tyco Simplex Grinnell, Inc., a fire sprinkler system subcontractor to SMC Contracting, Inc., the general contractor on a project known as the Chateau at the Village in South Lake Tahoe, California. Under the parties’ agreement, Tyco agreed to “immediately correct any and all unsafe acts or conditions that are brought to its attention” and to “comply with all specific safety requirements promulgated by any governmental authority, including without limitation, the requirements of the applicable state and federal Occupational Safety Health Act….” Further, Tyco agreed to “conform to the safety policy of [SMC]” and SMC’s safety policy stated, among other things, that “[s]ubcontractor supervisory personnel will review each work area prior to commencing work” and eliminate “[a]ny [s]afety hazards … prior to commencing work.” SMC’s safety policy also stated that that subcontractors must provide a safety orientation for their employees, which must include the following instruction: “Don’t work unsafely or in unsafe environment. Tell foreman.”


During the fire sprinkler installation, McCullar arrived at the project to find the floor covered in ice. The night before, SMC had turned on heaters in the project to help dry a fireproof coating. According to McCullar, the heaters melted the snow on the roof, the melted snow dripped onto the floor through openings in the roof where air conditioning units were to be installed, and the water on the floor then froze into ice overnight when the temperature fell below freezing.


On seeing the ice, McCullar asked SMC’s superintendent what are “we … going to do about this ice issue”? But rather than answer the question, the superintendent said that SMC “ha[d] to have the heaters on” to dry the fireproofing coating on the building’s steel beams. McCullar responded, “`Well, that’s fine, but what are we going to do about the ice situation?'” “And at that point,” according to McCullar, the superintendent “told me to go back to work and he turned around and walked off.” Shortly before talking to SMC’s superintendent, McCullar also asked Tyco’s field superintendent “what he was going to do about the issue we have with safety of all the ice on the floor.” But Tyco’s field superintendent said only, “`What can I tell you, Tom. Get the job done.'”


McCullar then began to work on the ice using a ladder and the results, as you might imagine, weren’t good. McCullar fell after the ladder slid on the ice and he suffered a shoulder injury that required surgery. McCullar later filed suit against SMC alleging five causes of action for negligence, negligence per se, violation of a nondelegable duty to maintain work floors in a safe condition, violation of a legal obligation to maintain a safe workplace, and a loss of consortium claim.


During the case, SMC filed a motion for summary judgment claiming that, under the Privette doctrine, SMC delegated its duty to ensure a safe workplace to Tyco so McCullar need to look to Tyco for recovery. The trial court agreed and granted SMC’s motion.

McCullar appealed.


The Appeal


On appeal, the 3rd District Court of Appeal explained that the Hooker exception to the Privette doctrine includes three key concepts: (1) retained control, (2) actual exercise, and (3) affirmative contribution:

“A hirer `retains control’ where it retains a sufficient degree of authority over the manner of performance of the work entrusted to the contractor.” Our Supreme Court has emphasized that “[a] hirer might be responsible for the presence of a hazard and even convey an expectation that the contractor perform its work without eliminating that hazard altogether, and yet leave the contractor ample freedom to accommodate that hazard effectively in whatever manner the contractor sees fit. In such instance, the hirer does not necessarily retain a sufficient degree of control over the contractor’s manner of performing the contracted work to constitute `retained control.'”
“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.’ [Citations.] In other words, the hirer must exert some influence over the manner in which the contracted work is performed.” “Unlike `retained control,’ which is satisfied where the hirer retains merely the right to become so involved, `actual exercise’ requires that the hirer in fact involve itself” (ibid.), “such as by directing the manner or methods in which the contractor performs the work; interfering with the contractor’s decisions regarding the appropriate safety measures to adopt; requesting the contractor to use the hirer’s own defective equipment in performing the work; contractually prohibiting the contractor from implementing a necessary safety precaution; or reneging on a promise to remedy a known hazard.”
Lastly, “`[a]ffirmative contribution’ means that the hirer’s exercise of retained control contributes to the injury in a way that isn’t merely derivative of the contractor’s contribution to the injury.” A hirer’s conduct satisfies the affirmative contribution requirement when “the hirer in some respect induced—not just failed to prevent—the contractor’s injury-causing conduct.” (Ibid.) “A hirer’s conduct also satisfies the affirmative contribution requirement where the hirer’s exercise of retained control contributes to the injury independently of the contractor’s contribution (if any) to the injury.” (Ibid.) That would be true, for instance, if “the hirer promises to undertake a particular safety measure, [but] then … negligent[ly] fail[s] to do so.”
The Hooker exception to Privette is triggered only when all three of these concepts—retained control, actual exercise, and affirmative contribution —are satisfied. Our Supreme Court in [Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 264] summed up these three concepts this way: “A hirer’s mere authority to prevent or correct a contractor’s unsafe practices (retained control) does not, without more, limit the contractor’s delegated control over the work. But to the extent that the hirer exerts influence over the contracted work such that the contractor is not entirely free to perform the work in the contractor’s own manner (actual exercise), the hirer does limit the contractor’s delegated control. Still, we impose a duty only where that limitation itself contributed to the worker’s injury (affirmative contribution), rather than where that limitation incidentally created an opportunity for the hirer to prevent the contractor’s injury-causing conduct.”

As to McCullar’s negligence claim, the Court of Appeal, while acknowledging that SMC’s conduct caused ice to form and, therefore, required Tyco to take extra safety precautions to account for the ice, explained that under the California Supreme Court’s decision in Gonzalez v. Mathis (2021) 12 Cal.5th 29, 45, “[o]nce an independent contractor becomes aware of a hazard on the premises, `the landowner/hirer delegates the responsibility of employee safety to the contractor’ and `a hirer has no duty to act to protect the employee when the contractor fails in that task. . . .'” Further, explained the Court of Appeal, under the Supreme Court’s decision in Sandoval, this presumed delegation of responsibility is not overcome simply because the hirer negligently created the hazardous condition, because while “[a] hirer might be responsible for the presence of a hazard and even convey an expectation that the contractor perform its work without eliminating that hazard altogether, [ ] yet leave the contractor ample freedom to accommodate that hazard effectively in whatever manner the contractor sees fit.”


Thus, held the Court of Appeal:

We conclude that Tyco not only had the authority to remove the ice, whether by chipping the ice, melting the ice, or through some other means; it also, as discussed, had the responsibility to take the necessary precautions to protect its employees from any hazard posed by the ice. And although Tyco did not exercise this responsibility to prevent McCullar’s injury, McCullar cannot hold SMC responsible for Tyco’s own failure.

The Court of Appeal held that McCullar’s remaining claims failed for similar reasons including his negligence per se claim. As to McCullar’s negligence per se claim, based on CalOSHA’s regulations found at 8 CCR §3273, which requires slippery floors to “be protected against slipping by using mats, grates, cleats, or other methods which provide equivalent protection,” the Court of Appeal, citing the California Supreme Court’s decision in SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594, explained that when hiring an independent contractor, a hirer implicitly delegates to the contractor “any tort law duty [it] owes to the contractor’s employees to comply with applicable statutory or regulatory requirements.”


Conclusion


So there you have it, just because you caused it, doesn’t mean you own it, at least under the Hooker exception to the Privette doctrine.

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