Summary Judgment in Favor of General Contractor Under Privette Doctrine Overturned: Lessons Learned
It seems like we’ve been seeing a lot of Privette doctrine cases recently. Here’s another, Brown v. Beach House Design & Development, 85 Cal.App.5th 516 (2002), which provides a cautionary tale for general contractors to watch what they include in their scope of work and how they manage projects.
The Beach House Case
Kyle Brown was a carpenter employed by subcontractor O’Rourke Construction, Inc. who contracted with general contractor Beach House Design and Development to provide finish carpentry on a construction project. A&D Plastering Co., another subcontractor on the project, had erected scaffolding on the project.
On June 16, 2017, while using A&D’s scaffolding, Brown fell onto a concrete walkway where he suffered severe injuries. Following the accident, Beach House and A&D inspected the scaffolding and found that some of the scaffolding was not properly secured to the building and that planks, crossbars, ties and guardrails had been cut or were missing.
Brown, though his guardian ad litem (the injury sounds like it was quite serious), filed suit against Beach House for negligence asserting that Beach House had failed to properly maintain the scaffolding. Beach House later moved for summary judgment asserting that it was not liable under the Privette doctrine.
In its motion, Beach House argued that A&D supplied the scaffolding not Beach House, that Beach House did not control the manner or means by which Brown performed his work, and that Beach House did not engage in any affirmative act that contributed to Brown’s injuries. In support of its motion, Beach House pointed out that under O’Rourke’s subcontract, O’Rourke was responsible for, among other things, “supervision necessary for completion of the scope of work [as] noted in the attached proposal.” Further, Beach House pointed out that under A&D’s subcontract, A&D was responsible for providing scaffolding “necessary to do the Work expeditiously”, to “provide traffic and safety controls at all times while using such equipment at the Project”, and to remove and replace any defective material, damaged [or] caused by Subcontractor or Work upon notice from Contractor, Owner or Architect.”
In opposition, Brown argued that there were triable issues of material fact as to whether Beach House furnished dangerous equipment and negligently exercised control over the job site. Specifically, Brown argued that O’Rourke’s subcontract did not include the furnishing of scaffolding, and that because the work involved installing second and third story windows, Beach House knew or should have known that Brown would use the scaffolding to complete the work.
The trial court found in favor of Beach House and entered judgment in its favor. Brown appealed.
On appeal, the 2nd District Court of Appeal explained that under the Privette Doctrine a hirer of an independent contractor is not liable for work-related injuries sustained by an employee of the independent contractor. However, the Court also noted that there were exceptions to the PrivetteDoctrine, one of which, known as the Hooker exception, provides that a hirer may be sued by an employee of an independent contractor if the hirer retained control over a worksite and negligently exercised that retained control.
Thus, explained the Court of Appeal, whether Beach House owed a duty to care to Brown turned on whether it retained control over Brown’s performance of his work and exercised control in a way that contributed to his injuries. Notably, the Court also stated that “[a]lthough plaintiff will have the burden of proof at trial, it was Beach House’s burden on summary judgment to demonstrate the absence of triable issues of material fact as to these issues”:
Applying these principles to the present case suggests that the essential questions for purposes of Beach House’s motion for summary judgment are (1) whether Beach House undertook to supply scaffolding for the use of O’Rourke and its employees, (2) whether Beach House fully delegated to A&D the alleged duty to provide and maintain the scaffolding, and (3) if Beach House did not fully delegate the responsibility to maintain the scaffolding to A&D, whether it exercised its retained control in a manner that affirmatively contributed to plaintiff’s injury.
The Court of Appeal held that there were triable issues of material fact as to each of these questions. As to whether Beach House undertook to supply scaffolding for the use of O’Rourke and its employees, the Court pointed out that O’Rourke’s scope of work included installing exterior trim on the second and third floors which required the use of scaffolding, that O’Rourke’s subcontract did not include the furnishing of scaffolding, that other subcontractors (other than A&D) were using the scaffolding and O’Rourke was never told not to use the scaffolding, that A&D’s plastering work took approximately six months but the scaffolding remained on site for more than a year, and that project documents indicated that the scaffolding had been increased in height “for siding installation. “Taken together”, explained the Court, “this evidence would allow a reasonable jury to conclude that Beach House undertook to provide scaffolding for the use of its subcontractors, including plaintiff.”
As to whether Beach house fully delegated to A&D the alleged duty to provide and maintain the scaffolding, the Court of Appeals pointed to conflicting testimony by Beach House and A&D, wherein the principal and site manager for Beach House testified that it was A&D’s responsibility to inspect the scaffolding and safely maintain it, and the principal of A&D who testified that once scaffolding is erected A&D does not examine it on a daily basis because it is the responsibility of “the superintendent of contractors on a daily basis to inspect.” This contradictory testimony, explained the Court, created triable issues of material fact. Further, the Court held that, while the safety obligations of A&D may have applied while A&D was performing its work, “it did not clearly require A&D to provide such controls at other times or for the protection of other subcontractors or their employees.”
Finally, as to the question, if Beach House did not fully delegate the responsibility to maintain the scaffolding to A&D, whether it exercised its retained control in a manner that affirmatively contributed to plaintiff’s injury, the Court of Appeal explained that a hirer does not necessarily need to engage in “affirmative conduct” to be held liable under the Hooker exception, and tat jury could “reasonably conclude that Beach House’s alleged failure to inspect and maintain the scaffolding gave rise to liability.” “Accordingly,” held the Court, “there are triable issues as to whether Beach House exercised retained control in a manner that affirmatively contributed to plaintiff’s injury.”
I think there are a few take aways from this case. First, this was an appeal from a judgment granting summary judgment and, as such, as pointed out by the Court of Appeal the burden was on Beach House. If the matter goes to trial, the burden would be on Brown, and the results could be different.
Second, the case underscores the importance for hirers, whether a general contractor or project owner, to examine their contracts with their independent contractors to ensure that: (1) the independent contractor’s scope of work includes all necessary tools, equipment and other supplies necessary for the independent contractor to perform its work (Note:Beach House’s subcontract with O’Rourke did just that); and (2) the independent contractor is responsible ensuring the safety of its employees and the equipment used by their employees (Note: it is unclear whether Beach House’s subcontract with O’Rourke included such provision).
Third, contractual provisions aside, hirers need to act in accordance with what their contracts provide. By turning a blind eye toward O’Rourke (and other subcontractor’s) use of the scaffolding furnished by A&D, Beach House opened itself up to potential liability when Brown injured himself on the scaffolding provided by A&D. Thinking this through, a hirer may want to consider including a provision in its contracts with its independent contractors providing that: (1) the independent contractor shall not use equipment not furnished by the independent contractor in furtherance of its work; and (2) should the independent contractor use equipment not furnished by the independent contractor, the independent contractor assumes all responsibility and liability for use of such equipment, and agrees to defend and indemnify the hirer from and against all claims that may arise from such use. Anyway, some food for thought.