You don’t often hear about workers being attacked by ne’er-do-wells on a construction project. But, as they say, shite happens . . .
Construction contracts often address health and safety issues, as well as site security to protect the improvement, materials, equipment and tools, as well as to protect the public from getting hit by say a large crane with a demolition ball, but site security to protect the workers from thugs, not so much.
This is exactly what happened to a construction worker in Degala v. John Stewart Company (2023) 88 Cal.App.5th 158 who was jumped and injured by three hoodlums who attacked him while he was working at a job site. The injured worker, an employee of a subcontractor, was covered by workers’ compensation insurance, but also brought claims against the general contractor and project owner for negligence and premises liability and they, in turn, argued they were immune from liability under the Privette doctrine.
The Degala Case
Abraham Degala was attacked and seriously inured while he was working on a job site in Hunter Point in San Francisco, California. Degala was an employee of demolition subcontractors Janus Corporation who had been hired by general contractor Cahill Contractor, Inc. The project was owned by project owner John Stewart Company.
The construction contract between JSC and Cahill required Cahill to “take reasonable precautions for the safety of, and . . . provide reasonable protection to prevent damage, injury or loss to . . . employees on the work and other persons who may be affected thereby.” The subcontract between Cahill and Janus provided that Janus’ scope of work excluded “[s]ite security” but that Janus was “responsible for securing [its] own tools and equipment.” In addition, the subcontract, in a section entitled “Environmental Health & Safety (EHS) Requirements,” required Janus to comply with all applicable EHS rules, regulations, policies, procedures and guidelines when performing work on the project, and to identify a person “knowledgeable” in those rules and guidelines who would “have the authority to mitigate hazards relative to [Janus’] operations.” The EHS requirements, however, made no mention of “physical” site security.
Site security on the project varied over time. Initially, Cahill hired a company to provide two uniformed security guards at the site during the day to discourage theft. However, these services were discontinued after JSC hired an outside company to provide a video voice system. The video voice system included cameras that were monitored offsite that had the capability of communicating with people if motion sensors were activated. The cameras, however, were not monitored during working hours. Cahill also erected fencing around the project to keep non-construction workers out of the job site during the day and to secure the site during non-working hours.
Adjustments were made to security measures from time to time, including closing the project site, in an apparent response to incidents in the neighborhood. Cahill also stopped weekday overtime work at a portion of the project because of concerns about worker safety and, after a shooting in the neighborhood, Cahill instructed workers to stop work before sundown. Later, after another shooting, Cahill instructed workers to stay indoors as much as possible while working and to eat lunch and take breaks inside. On three other occasions, Cahill closed the site completely, or closed the site early, over security concerns. Degala and another worker submitted job hazard analysis forms to Cahill identifying “working in the neighborhood” as a hazard, “neighborhood shooting guns” as a hazard, and suggesting having “police officers on site escort.”
Degala was attacked on January 11, 2017 which he was leading a crew performing work in two buildings that were separated by a walking path connecting a sidewalk on one street to a sidewalk on a parallel street. Each of the buildings where Degala was working was surrounded by a fence, but there was an unfenced walkway between the buildings, which was used by neighborhood residents. Usually, it was Cahill’s practice to fence off an entire area under construction rather than allow non-construction personnel to walk between two buildings where construction activity was taking place. But in this case, in response to concerns expressed by residents that the fence blocked a walkway they regularly used as a route to a bus stop, Cahill changed course and had a separate fence constructed around each building, leaving a walkway open to the public so that neighborhood residents would not have to take a less convenient route.
Degala was attacked on the walkway between the two buildings. He was approached by three men who had somehow come through the fencing that surrounded the building. They followed him out of the building to the open walkway where they attacked him and then fled. They were never identified. Degala was covered by workers’ compensation for his injuries.
Degala later sued JSC and Cahill on claims of negligence and premises liability. As to his negligence claim, Degala alleged that JSC and Cahill negligently managed the operation of the project site by failing to monitor access to the site and failing to prevent access by people who sought to harm workers. As to his premises liability claim, Degala alleged that JSC and Cahill had a duty to control and maintain the project site in a reasonably safe condition and to exercise reasonable care in performing their voluntary undertakings to provide security on the site, which included monitoring safe and secure access to the site, but breached their duties by removing security guards from the project site and allowing “unfettered access” to the site without regard to worker safety.
JSC and Cahill later filed separate motions for summary judgment which were granted by the trial court. Degala’s filed a motion for new trial that was denied and then filed an appeal.
The Appeal
On appeal, the 1st District Court of Appeal explained that, under the Privette doctrine, the hirer of an independent contractor “presumptively delegates to the contractor the responsibility to do the work safely.” However, went on the Court of Appeal, “[o]ur Supreme Court has recognized exceptions to the Privette doctrine,” and one such exception, explained the Court of Appeal, was the Hooker exception. Under the Hooker exception explained the Court of Appeal:
“[W]hen the hirer does not fully delegate the task of providing a safe working environment, but in some manner actively participates in how the job is done, and that participation affirmatively contributes to the [contractor’s] employees injury, the hirer may be liable in tort to the [contractor’s employee.” Accordingly, “[I]f a hirer entrusts work to an independent contractor, but retains control over safety conditions at a job site and then negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, the hirer is liable for those injuries, based on its own negligent exercise of that retained control.”
On appeal, Degala contended that JSC and Cahill retained control over site security and that JSC and Cahill’s motions for summary judgment should have been denied because there were triable issues of fact as to whether they exercised their retained control in a manner that affirmatively contributed to the attach in which he was injured. JSC and Cahill, in turn, argued that the Hooker exception did not apply.
The Court of Appeal considered three issues on appeal:
Whether JSC and Cahill retained control over site security at the job site: The Court of Appeal found that Degala had presented sufficient evidence to show that there were triable issues of material fact as to whether JSC and Cahill retained control over site security at the job site, pointing to: (a) the contract between Cahill and Janus which excluded site security from Janus’ scope of work, and, while the contract between JSC and Cahill delegated site security to Cahill, JSC retained the power to direct how the site security was set up; (b) JSC hired off-duty police officers to be stationed on the job site during work hours; and (c) Cahill added a permitter fence around the entirety of the project.
Whether JSC and Cahill retained control over Janus’ contracted work and actually exercised that control: The Court of Appeal also found that Degala had presented sufficient evidence to show that there were triable issues of material fact as to whether JSC and Cahill retained control over Janus’ contracted work and actually exercised that control, pointing to JSC and Cahill’s weekly discussions about site security and their implementation of different measures to protect property and people in response to incidents in the neighborhood, from the elimination of overtime, to instructions to stop work before sundown, to stay indoors during lunch and breaks, occasional closures of the project site, and configuration of the fences around the project site.
Whether JSC and Cahill’s allegedly negligent exercise of their retained control affirmatively contributed to the harm suffered by Degala: Finally, the Court of Appeal found that Degala had presented sufficient evidence to show that there were triable issues of material fact as to whether JSC and Cahill’s allegedly negligent exercise of their retained control affirmatively contributed to the harm by Degala. However, noted the Court of Appeal, “‘the failure to institute specific safety measures is not actionable unless there is some evidence that the hirer . . . had agreed to implement these measures,”’ and “‘[a] hirer’s failure to correct an unsafe condition’ is insufficient’ to establish liability under Hooker.” Here, however, explained the Court of Appeal, “[t]his is not a case where JSC and Cahill passively permitted an unsafe condition to exist: there is ample evidence that JSC and Cahill took affirmative steps to address the dangers posed to workers in an area known to have a high rate of crime.”
Conclusion
The take-aways from this case, I think, are two-fold. First, on a motion for summary judgment, the defending party need merely show that there are triable issues of material fact, and here there were multiple contested issues of material fact as to whether JSC and Cahill retained control over site security, whether they exercised that control, and whether their exercise of that control contributed to Degala’s injuries. Second, which I think is a more problematic practical take-away, is that while JSC and Cahill could have contractually placed the onus of site security on Janus and hypothetically won on the Hooker exception, the reality is that as the owner and general contractor on the project, respectively, both JSC and Cahill had both a practical and vested interest in being able to control overall site security on the property they owned, in the case of JSC, and a construction project they had a contractual responsibility for controlling, in the case of Cahill.
If you haven’t seen it, and you’re into over the top action, here’s an oldie but goodie: Gangs of New York! (it’s one of those films where you have to get your ears attuned to the dialogue, a bit like reading Shakespeare):
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